I UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY iONVSOV y§ n ^ '% r^ - ^^na I 5 ^; — %-^ ,>-;' =5 (til 1 — Q .„ A TREATISE JURISDICTION OF COURTS. IN TWO VOLUMES, EACH VOLUME COMPLETE IN ITSELF. By J. C. WELLS, Author op "Res Adjudicata ^nd Stare Decisis;" "Separate Property o» Married Women;" "Questions of Law and Fact, Instructions to Juries and Bills op Exception;" "Magna Charta;" Etc. VOLUME I, COKTAINING PART I. Elesientary Principles. PART II. Specific Original Jubisdictioks. SAINT PAUL: "WEST PUBLISHING COMPANY, 1880. T COPYT?TGHT 1880. WEST PUBLISHING COMPANY. PREFACE. This work is offered to the profession mirier tlie Ijelief that a treatise on the subject of jurisdiction has long l)een a desideratum ; since, while the subject enters into everything, there is no distinct treatment of it available. Four years ago I undertook the task wbieh is now embodied herein. What degree of merit may attacli to tlie i)erformauce of it is not for me to say. I am strongly inducetl to hoi)e that it will be found acceptable, from the very llattering reviews whicli my former works have called forth; and es])ecially from the late exi)licit commendation of Ees Adjudicata. by the Supreme Court of the United States, in an important case, wherein my remarks were cited as authority. Almost witlioiit exception the critics have treated me with very gratifying kindness and indulgence; for wliicli I here -ex ] tress my heart -felt gratitiide. Owing to the leiigtli of time tlie manuscript was in liniid jit'ter the first draft Avas pre})ared, to my desire to have tlie latest cases availa- ble inserted, and to the great laljor whicli would have been involved in rewriting, there are more foot-notes contained in the worlv than I approve. These notes consist mainly of the late cases, which, how- ever, are mostly confirmatory and explanatory of the doctrines stated in the text originally. Lengthened foot-notes are very undesirable in ii legal text-book, I think, since they tend to divide or chop up the discussion of the topics presented. My idea is, that, as a general nde, Avhatever, bedsides the mere references, ought to be wrought into a book at all, should be given in the text. I have not hesitated to cite the exact language of the courts when- ever I thought a Avell-considered quotation would add to the clear- ness of the explanations of the subjects treated. To avoid quotations, professedly, is, it seems to me, the very affectation of originality; besides involving a very uncomplimentary contempt for the reasoning of the courts, if not for the courts them- selves. The point to be avoided is stulhng a book with prolix or irrelevant passages. . The very language of the courts must, of neces- sitv, be more satisfactory to lawyers who have not access to extensive (iii) IV PJIKFACK. liliijiiifs, th.iii tho mere stateniont by an antlior of what the cases ti-arli. Ami i>()oti writers — such as Story, Cooley, and others — do not hcsitato lo 4note freely wlienever it answers their purpose, whether in ihe text, or in notes. As I am inclined to dispense with the latter, my quotations mainly appear in the former. I have not been anxious to cite all merely confirmatory opinions; lint have followed the example set by Greenleaf on Evideiioe, and by other standard works, in this particular. I have endeavored, how- ever, earefuUy to note all principles, exceptions, modifications, and especially all contradictions, among the authorities. It wtfrild be pedantic in the highest degree to fiing down a whole page of refer- ences to establish the universally conceded principle that consent cannot confer jurisdiction as to subject-matter; and so of others. And, as a general rule, what is termed "clustering cases around a great leading principle," may sound very learned, but it merely amounts to this — that tlie individuality of the cases is ignored. Each case is likely to have some distinctive feature, which should be indicated, although sometimes merely by a w^ord or phrase. AVhere a handful of cases is thrown down together, it will generally be found the majority of them mean absolutely nothing where they stand, and do not even directly support the point at which they are aimed. A very few cases will suffice to sustain an uncontradicted point; and if there is any variance or peculiarity, this should be dis. tinctly noted — which cannot be done under the practice of huddling cases together in large mobs collected with but a vague general pur- pose, and without any specific definite end. The present volume is entirely distinct and independent from the contemplated second volume; so that attorneys who only wish one volume will not be compelled to purchase both in order to have a complete book, so far as its scope extends. I do not know that I need say anything more here. I await the verdict. CONTJilNTS. PART L-ELEMENTARY rRIXCIPLES. CHAPTER I. JURISDICTION DEFINED. Page. 1. Etymology of the word "Jurisdiction" 1 2. Limits of j urisdiction 1 3. Definition by tlie United States supi-eme court 2 4. flaintitf 's riglit confers tlie jurisdiction 2 6. Distinction between judicial and ministerial acts 3 €. Judging the constitutionality of statutes — justices of the peace, etc 3 CHAPTER n. JUKISDICTIONAL DISTINCTIONS. 7. Jurisdiction in personam and in rem 7 8. Law and equity 8 9. Civil actions and criminal, military and ecclesiastical 8 10. Superior and inferior jurisdiction 8 11. Concurrent and exclusive j urisdiction b 12. Original and appellate jurisdiction— direct and incidental juris- diction 9 CHAPTER HI. LEGATi EFFECT OF ACTING WITHOUT' .JURISDICTION. 13. jSTo opinion to be given without jurisdiction 10 14. What may be done without jurisdiction 1'^ 15. Legal effect of acting without jurisdiction explained il IC. Example 11 17. Application to hdhatx corpus to cotirts martial and to the tran- scending of the limits of juri.sdictiou 12 V vi contp:nts. Page. f IS. Effect of subsoqiient invostiHire of jurisdiction 12 li". Stair (ieciKis in regard to jui'isdictional questions 12 20. Foreign courts ^^ CHAPTEE IV. ILLECr.^L COURTS. $21. General rule as to unauthorized courts 14 2'2. C'onfeileralo courts ^^ 2:{. Doctrine relating thereto in Louisiana 16 'M. Xu Ahibania case at length 16 25. Provisional courts afterwards declared illegal — general princi- ple as to the confederate courts 20 CHAPTER V. SITERIOR OR CtKNERAL AND INFERIOR OR LIMITED JURISDICTION. ^ 20. Distinction not readily deliued 22 27. Bouvier's definition 23 2>*. General jurisdiction limited to particular subjects 23 2'J. t5lalui(jrj innovations 24 CHAPTER VI. PRESUMPTIONS. } 30, Presumptions as to superior courts and to inferior courts 26 31. ( 'las>ificatiou 26 32. What is presumed as to .superior courts 26 33. How jurisdiction of a superior court impeached 27 34. The general rule of presumption 27 3.J. How it is limited as to superior courts 2S 36. 1 low limited in reference to the mode of procedure 2& 37. Particidar jurisdictional facts presumed r 28 38. Regularity of proceedings presumed 29 39. Presumptions conclusive as to discretidn 29 40. Presumptions adverse as to limits of jurisdiction of inferior courts 29 41. Specific facts must appear • 30 42. Examples 30 43. Powers of inferior court subject to a strict construction 31 44. Justification of ministerial acts under proceedings of courts. ... 31 45. fjegislature may change presumptions , 32 4G. Presumption of regularity as to inferior courts 32 CHAPTER Vn. CONSTITUTIONAL LIMITATIONS. f 47. Different departments of government 33 4fe, Discretionary acts not controllable 34 CONTENTS. Vii P;iSe. } 49. Example in Missouri ;^5 50. No waiver allowed by executive officer, etc 37 51. Presumption as to executive action .38 52. Courts will interfere in personal contests for a state office 38 53. Courts cannot compel collection of public revenue by the execu- tive department 3<> 54. National boundaries 39 55. Unconstitutional laws 33 CHAPTER VIII. HOW JURISDICTION IS INQUIRED OF. f 56. Axioms 41 57. Collateral inquiries as to jurisdiction 41 58. The United States supreme court on reviewins; foreign decisions 42 59. Courts in sister states 43 60. .Jurisdiction as to a pending case in another court 44 61. .Judgment of inferior courts on jurisdictional facts 44 62. Courts bound to inquire as to jurisdictional facts 44 63. Time of objecting 44 64. How a want of jurisdiction may be taken advantage of 44 65. General observation a^ to tests of jurisdiction 46 CHAPTER IX. SOURCES OF JURISDICTION AS TO SUBJECTS. 4 66. Consent cannot confer jurisdiction of subject-matter 47 67. Sources : (1) Common law, (2) Constitutions, (3) Statutes 52 68. Organization of courts and granting juri.^diction "(2 69. Repealing statutes 56 70. Statutor}' authoritj' to l)e strictly pursued 58 71. Probate powers of common law courts statutory 59 72. Remarks on strict construction 59 CHAPTER X. DEFEAT OF JURISDICTION. $ 73. Jurisdiction of superior courts only taken away expressly or by necessary' implications IM 74. Creating new courts with exclusive juiisdiction li.} 75. liepeal of criminal law c:! 76. EtTect of bankruptcy d-t 77. Effect of appeal (i4 78. Arbitration (i4 79. Effect of .siibseijuent fact occurring ()5 80. Giving special powers does not oust general poweis 68 81. Example of subsequent fact in lunafv proceedings fiS Viii CONTKNTS. CHAPTEE XI. PAUTIES. Page. 4 82. " Day in cnnit "—notice 6i» 83. Summons '- S4. Fraud on parly defendant ''•^ }»5. Parly in court Ixmnd to talvO notice of the proceedings 7o S6. Conferring personal jurisdiction by appearance 74 87. Non-residents '*' 88. Notice as to non-residents " )*9. Foreign corporations 79 90. Ecjuily jurisdiction from residence SO 91. Record party gives the jurisdiction 80 92. State as party 82 93. Consuls • 82 94. Indians 82 97). Non-resident plaintiffs 83 96. Officers of U. S. government 83 97. Service and return statutory 83 CHAPTEE XII. PARTIES (continued) CONFEDERATE SOLDIERS. f 98. Judicial results of the civil war 84 CHAPTEE XIII. JURISDICTION DETERMINED BY VALUES. § 99. Various limitations 93 100. How' limitation by value is estimated 93 101. Unbalanced account 9.5 102. Remitting excess 96 103. Consolidation of claims 96 104. Value in ejectment suits 99 10.5. Ad damnum clause 100 106. Values in crimes and torts 100 107. No waiver as to jurisdiction measured by value lul 108. Set-offs 102 109. Aggregating claims in declaration 103 110. Various mortgage claims 103 111. Purchase price of property involved is not the standard 103 CHAPTEE XIV. VENUE. $ 112. Meaning of term "Venue" 105 113. General jurisdiction of state 105 CONTENTS. IX Pago. 'f 114. Suits bet-ween non-residents 108 115. Torts committed without the jurisdiction 110 116. Venue in regard to lunds 11-^ 117. Venue in regard to counties ll.'J 118. Process in another couut v 11 ") 119. Jurisdiction by levy on land IJti 120. Venue in regard to boundaries 116 -121. Place of holding court 117 CHAPTEE XV. CHANGE OP VENUE. $ 122. Transfer of cause to another tribunal 118 123. Cause for change of venue — prejudice 11!) 124. Cause of action arising in another county 121 125. Convenience of witnesses 121 126. Must be in accordance to statute 122 127. Discretion of the court 122 128. Notice to change 124 129. Change to remote county 124 130. Parties to application 125 -131. Provisional courts 125 CHAPTER XVI. TEEMS OP COURT. i 132. Must he as prescribed by statute 126 133. What is a compliance 127 134. Mistake in statute— discretion of judge 128 135. Extension of term 128 136. Change by statute — notice to parties 128 137. When term is to be extended 128 138. Term regarded as one day 129 139. Effect of lapse of a term as to sureties on a recognizance 129 CHAPTER XVII. INCIDENTAL JURISDICTION. ^ 140. In general ISO 141. Regulation of practice 130 142. Publication of proceedings — power to prohibit 131 143. Amendments, discretionary 131 144. Power over process and officers ].;.". 145. What is a pending suit 13.') 146. Hupplementnry proceedings J.'iC 147. Over lioats in navigable waters l.",7 X CONTENTS. CHAPTEE XVIII. INCIDENTAL JURISDICTION AS TO CHURCHES AND OTHER VOLUNTARY SOCIETIES. Page. i 14s. In seneral 139 l-iiK A> to lodges 139 150. Ai'1 ion against secret organizations, etc. — boards of trade 141 151. Church regulations 142 152. Forfeiture of jiroperty in church by members seceding 14t> 163. Interference with church affairs 14& CHAPTEE XIX. EXCLUSIVE AND CONCURRENT JURISDICTION. § 154. In general 148^ 155. Between law and eciuity courts 14& 156. General principle 149 157. Same rules app]_v as to concurrent tliat appl}' to separate juris- dictions Va^ 158. Application of the rule 150 159. Conflict of jurisdiction — priority 151 160. llule of priority — limitations 152 CHAPTEE XX. SUMMARY PROCEEDINGS. f 161. Former scope of such i)rocecdings 155 162. Authority must be strictly pursued 155 CHAPTEE XXI. JUDGES. j 163. Judicial purity 157 164. Age — dejnrc and dc facto judges 15& 165. Kesidence 159 16G. Official and personal bias 159 167. 3Iinisterial acts which do not disqualify IGO 168. Mere partisan feeling not a disqualitication KiO 169. Having acted as counsel 161 170. Kindred I(i2 171. Pecuniary interest — fiduciary positions — suretj- 163 172. Sunmiary of disqualifications — Buford case 166 173. Procedure in case of disqualification 167 174. Suljstitution 168 175. Liiibiiity of judges for official acts ] 69 176. Wilful al)uses — forfeiture 172 CONTENTS. XI CHAPTER XXII. CONTROL OF ATTORNEYS. Page. § 177. Removal from the bar 173 CHAPTER XXIII. CONTEMPTS. $ 178. Power to punish for contempts essential 177 179. Nature of the power 178 180. Nature of proceedings in contempt 181 ]^1. Contempt of witness 182 182. Bringing a fictitious suit IS-i 18.3. Quarreling or lighting 1>') 184. Extent of power to punish Is") 185. Attempt to obtain opinion when there is no real controversy. . isy^ 186. Client not answerable for contempt of attorney 1S() 187. Contempt committed by a court ]s7 188. Disobedience of orders made out of court 1^7 189. Contempts by not paying money 1^7 190. Violation of injunctions 188 191. Insolent language of an attorney to J. P 188 192. Proceedings not retroactive 188 193. When citation to show cause must issue 189 194. Clearing contempt 189 195. Remitting sentence l)y pardon 190 196. Denial of right to litigate to one in contempt 190 CHAPTER XXIV. NEWSPAPER CONTEMPTS. } 197 Indirect contempts — general rule and examples 191 PART II.-SPECIFIC ORIGINAL JURISDICTIONS. CHAPTER I. THE COMMON LAW. } 198. Explanation of the common law 203 190. Basis of jurisprudence 204 200, Modification of ilie common Jaw 207 xii CONTENTS. Paee. § 201. Distinction between principles !ind rules 208 202. The standard of judgment herein 20;t 203. What the common law is 211 204. Examples of moditication 211 205. JSo moditication to be implied from a statute 212 206. Effect of statutes prescribing remedies 212 207. Common law as to the United States courts 213 208. Sources of knowledge of common law — general rules 213 209. Effect of a want of early precedents in this country 216 210. Exemplifications of public grants 210 211. Process of attachment 217 212. Remedies in United States courts 218 213. Offences and crimes 218 214. Felony merging private wrongs 222 CHAPTER II. EQUITY. 4 215. Basis of equity jurisdiction 223 216. Concurrent jurisdiction 226 217. Preventing multiplicity of suits 227 218. Equity does not revise legal proceedings 230 219. Nor supply defences 231 220. When legal proceedings may be set aside 232 221. Erroneous but not void judgments not set aside 234 222. Equity will not revise proceedings of mferior courts 23-4 223. Equity does not entertain direct suits for money, nor determine cases involving mere legal questions 234 224. Penalties and forfeitures 235 225. Election cases 235 226. When legal rights will be enforced 235 227. Doing full and complete ju.stice 23.'. 228. Equitable conversions 236 229. Discretion of equity 236 230. Classitication of equitable remedies — trusts 2'i7 231. Frauds 239 232. Cancellation and rescission , 240 233. Reformation 243 234. Specific performance 246 235. Clearing titles 248 236. Partnership — heirs 248 237. Suretyship 248 238. Ne exeat writs 248 239. Bills of discovery 249 240. Injunction. 249 CONTENTS. Xlll CHAPTER III. ADMIRALTY. Page. j 241. Admiralty jurisdiction explained 251 242. Di.stiuctiou between admiralty and conunon law 2.')4 243. Extension of jurisdiction 254 244. How jurisdiction exercised 257 245. Wlien jurisdiction attaches 259 24(). Ett'ect of state statutes 259 247. Seamen'.s wages 260 248. Conjoint proceeding in pey^oiuain and in rem 260 249. Ousting jurisdiction by mixed contract 20O 250. Vessel partnership 262 251. Titles to sbips — mortgages 26:j 252. Contracts for building ship.s — repairs 266 253. Furnishing supplies 266 254. JIaritime liens — maritime contracts 267 255. Insurance, etc 269 256. Salvage 269 257. Supervision of seamen's contracts 271 258. Contracts of transportation 271 259. Lien by advancing money to release vessel seized by marshal.. 271 260. When suit may be brought where a promissorv note has lieen given 271 261. Distinction between vessel and cargo 272 262. Collision 272 263. Torts 272 264. Violat ions of revenue laws 275 265. Felonies 275 266. Pirates 276 267. Admiralty jurisdiction as to foreigners 277 268. Prize jurisdiction 279 269. Repairs or supplies as to foreign ships 281 270. Trusts — specific performance 281 CHAPTER IV. PROBATE. f 271. Nature of probate jurisdiction 282 272. Authority mainly statutory 283 273. Relation with courts of chancery 283 274. Collateral questioning of proceedings 255 275. Domicile determines jurisdiction 288 276. VV ills 289 277. Appointing power 290 278. Power of control and removal 291 279. Assets of estates 292 XIV CONTENTS. Page. 4 280. Claims aguinst estates 292 281. Partition and dower , 294 282. Sale of laud to pay debts 294 283. Binding oul orphans 296 284. Xo power to sell homestead 296 285. Deciding on validit)' of bequests — trusts 296 286. Partnership accounts 29i; 287. Set-offs 296 288. Situs of i)ersonal property 297 289. Limitation of control of administrators, etc 297 290. Probate of wills devising real estate 297 291. Spccitic performance 297 292. Matters of fraud 298 293. Changes of venue ' . . . 298 294. Statutes of limitation 29s 295. Administrator of an administrator 298 '296. Rents for real estate 298 297. Habeas corpus writs 298 298. Contempts 298 299. Settlements and distributions 299 300. Same — limitation of jurisdiction 300 301. Disqualitication of probate judge 301 302. Terms of court 301 CHAPTER V. CRIMES. 4 303. General remarks 302 304. Source of criminal jurisdiction as to United States courts 303 305. Statutory jurisdiction of United States courts 304 306. Abuse of criminal law 306 307. Res adjitdicafa in criminal prosecutions — explanation of " twice in jeopardy" 307 308. Arrest by private citizens .308 309. Punishiuent of attempts 312 310. 'Wrongful intent 312 311. Effect of a pardon 314 312. Venue 314 313. Extra-territorial and continuing offences 315 314. Illegal voting beyond the state 321 315. General responsibility of citizens for acts done abroad ;j23 316. Explanation of this by Christian ri/, J 323 317. Offences by means of agencies 32") 318. Offences in foreign jurisdictions 328 319. Offences in different count ies 329 320. Distinct constitutent acts in different states or counties 329 321. Foreigners committing offences within the jurisdiction 3.;;; 322. Extradition , 33.J CONTENTS. XV CHAPTER VI. BANKRUPTCY. PilCC i 323. Original jurisdiction in baukruplcy .'!-4h 324. Disability of district judge 34 1 32.5. Exercise of jurisdiction as to Icrms 341 326. Appearance ;i4 1 327. Pending suits in otlicr courts 34,; 328. Assignee as party in other courts 342 329. Eft'ect of bankrupt laws on state insolvent laws .'Uii 330. Acts of bankruptcy 34." 331. Preference of creditors 34.5 332. Minors 34(i 333. Defence by debtor o4i; 334. Discharge without jurisdiction 347 335. Subsequent creditors 347 336. Beginning of proceedings 347 337. Prior liens 347 33S. Conflict of jurisdiction l)etween federal and state courts 34s 3.39. Concurrent jurisdiction between district courts 34!* 340. Accounting between members of a bankrupt tirm 34'.i 341. Ousting jurisdiction by payments 351 342. Protection of debtor from arrest by state court 35 1 343. Extent of bankruptcy jurisdiction 351 344. Bankruptcy by a corporation ' 352 CHAPTER Vn. CLAIMS AGAINST THE NATIONAL GOVERNMENT. J 345. Suing a state or nation in its own courts 3.53 346. Definition of the jurisdiction by the .statutes 3.54 347. No equitable jurisdiction 35(i 348. Character in which the United States are sued 358 .349. Not liable for torts of their officers 359 350. Revenue laws not under this jurisdiction 362 351. No jurisdiction where state a party . ._ 364 352. Loyalty as a requisite of parties, and other requisites 364 3.53. Patents not cognizable 3<'6 354. .Jurisdiction only extends to judgments for money 36(i 355. Where paymaster has had fund stolen 366 356. Claims arising under treaty 367 357. Reference of claim to commission — award 3(i7 358. Salvage services 3(i'" 359. Equitable jurisdiction 36« 360. Reference of claim by officer 368 361. Indian supplies — quantum meruit 369 XVI CONTP^NTS, Page^ j ;)(i2. Loss b}' adoption of now rules of inspection — jurisdiction in cases of illegal imprisonment oGi> 'Mo, 3(J4. Military damages during rebellion 3G">, 371 36"). Abandoned or captured property 371 366. Rebel cannot sue, although pardoned 372. 367. Liabilit}- for acts of executive officers 372 368. Of prize court decisions 372 CHAPTER VIII. ABANDONMENT OF HOMESTEAD CLAIMS. § 360. Duties of land officers usually ministerial but judicial as to abandonment — instruction of land commissioner 375 370. Jurisdiction of an equitable rather than legal nature herein. . . 374 371. Effect of cancellation of claims 374 372. Synopsis of decisions from Lester 374 373. Unintentional lapses 37» 374. Soldiers and sailors 375 375. Claim made while in the army — what absences do not work abandonment 37(> 376. Only one entry allowed 37t> 377. Double homesteads on marriage 376 378. Homestead entries only on surveyed tracts 377 379. Conflicting claims determined by bids 37T CHAPTER IX. IMPEACHMENT.' § 380. What articles of impeachment emt)race 37S 381. Effect of resignation before articles are preferred 378 382. Futility of impeachment i->roceedings at present 379 383. Example — Hopkinson case 379 384. Same— Peck case 38» 385. Same — case of Judge Chase of the United States supreme court 380 386. Same — case of President Johnson 384 387. Remark 385 CHAPTER X. JURISDICTION OF .JUSTICES OF THE PEACE. ^ 388. "Want of uniformity in the different states 386 389. Law of presumptions 386 390. Titles to lands 387 .391. Justices of the peace in the District of Columbia 391 392. Immunities of a justice of the peace 3r>2 CONTENTS. XVii i 31)3. Process 392 3il4. Venue -502 3!)5. Rules as to process and returns ;;;)4 39(J. Disqualification ;5!I5 397. Evidence .JDG 398. Judgments by default not allowable 3!H> 399. G uaidian ad litem 397 400. Discretion of a justice 397 401. Void and voidal)le acts 397 402. Jurisdiction limited by amounts 397 403. Jury trials 399 404. Entry of judgment 400 405. Kelation of a justice to other justices 401 406. Legislative power in conferring jurisdiction 401 CHAPTER XL COMMISSIONERS OF HIGHWAYS ; AND HEREIN OF EMINENT DOMAIN. § 407. Special judicial powers 402 408. Record evidence of jurisdiction 403 409. Statutes must be strictly pursued 403 410. Effect of exceeding jurisdiction 404 411. Void and voidable acts 405 412. No power over navigable streams 406 413. Highway crossing railroad 408 414. Altering highways .• 409 415. Effect of wrongfully laying out highwa}' 409 416. Estoppel as to jurisdiction 409 417. Terms 410 418. Notice 411 419. Disqualifications 411 420. Nature of eminent domain 411 421 . The taking of property r 412 422. The primary right is in the legislature 413 423. Province of a jury as to the taking 413 424. Public use — how decided 414 425. What a public use is 418 426. Delegation of power strictly construed 421 427. Discretion of officers after power delegated 421 . 428. Presumptions as to the exercise of jurisdiction 422 429. Kinds of property subject to the right 422 CHAPTER Xn. ARBITRATION. 5 430. Nature of arbitration 424 431 The sulimission — parlies 426 XVIU CONTENTS. Page. j 432. Minois 427 433. Guardians 428 434. Executors and administrators 429 435. Attorneys at law 431 436. Agents 433 437. Partners 43o 438. Joint owners 440 439. Husband and wife 441 440. Corporations 442 441. United States district attorneys 443 442. Effect of submission made while under arrest 443 443. What may be arbitrated — what an award may embrace — sub- missions — revocation — disqualiticatious 44S CHAPTER XIII. NATURALIZATION. 5 444. Duty of con.^ress to provide for nat uralization 447 445. Naturalization a judicial act 447 446. What courts ma}' act 447 447. Conflict of authority as to state jurisdiction 448 448. Act of congress not authoritative so as to require state courts to act 451 449. Record of naturalization conclusive 453 450. Naturalization not retroactive 454 451. Singular law and singular execution of it 454 452. Naturalization as to infants 455 CHAPTER XIV. QUO WARRAXTO. 4 453. Ancient writ disused 456 454. Nature of the action 456 455. Nature of the jurisdiction 457 456. Prosecution in the name of the people 458 457. Legislative amendment pending proceedings 460 458. Original jurisdiction of a supreme court 460 459. Common-law rules 461 460. How jurisdiction acquired in a particular case 461 461. Change of venue of case transmitted by a supreme court to a particular circuit court 461 462. Consent cannot give jurisdiction 462 463. Who may be a relator ■ • • • 462 464. W hat the proceeding embraces 463 465. State not bound to show demand — prosecution not substituted for impeachments — constitutionality of a law — nugatory writs — forfeiture — discretion — private appointments^— title to past otfice 463 CONTENTS. XIX Page. f 466. Legal organization of a town — right of a school district — mili- tary office — rule as to appointments — answer to be made to the sovereignty — escheats — private franchises 4GG 467. Writ not confined to the subjects of the ancient writ 468 46S. Membership in a city council 468 4Gft. Contested elections 468 470. Organization of new counties 469 471. Exercise of an office while proceedings are pending 470 CHAPTER XV. MANDAMUS. i 472. Nature of writ 472 473. Discretionary 473 474. When other cases pending 47(i 475. Common-law rules 476 476. Not allowed when there are other adequate remedies 476 477. Writ to enforce official duty 478 478. Demand and refusal 47ii 479. Matters of discretion — illustrations 480 480. The writ not a subsiitute for appeal 480 481. Only enforces po.ssible acts 482 482. What courts may issue 482 483. Writ serving as a writ of inquiry 482 484. Munclumus from an appellate court 482 48'). Not to enforce matters arising from contract 483 486. Executive officen; — extradition 483 487. State treasurer 485 488. Secretary of state 486 489. Writ issued to inferior courts 486 490. Not to condemn lands 487 491. College-professorship case, in Michigan 488 492. Courtesy among judges as to issuing writ 489 493. Enforcing compensation to school teacher 489 494. Public improvements — various matters as to payments 489 49.5. Ferry tolls 494 496. Private coi-porations 494 497. Church and society matters and membership 495 498. Bids enforced by mandamus 496 499. Elections 496 .500. Ousting jurisdiction by expiration of office 497 501. Mandamus not to try title to office 497 502. But demand for room, keys, etc., may be enforced 497 503. Location of highways 498 504. Compelling successor to seal a county warrant 498 505. Compelling to correct a deed or sign a contract 498 506. Compelling admission of a colored child to the public schools — enforcing right of a school committee 499 XX CONTENTS. Page. § r)07. Surveys 491) 508. Miscellaueous particulars 49i> rMK Return to the writ .'.00 510 Kf'lators 500 CHAPTER XVI. PROHIBITION— iV£ EXEAT. $ 511. Distinctions 502 512. Nature of the writ of prohilntion 503 513. Its design 503 514. As to the mayor of a city 504 515. As to the levy of taxes 504 516. Connection with appellate jurisdiction 504 517. Its object is not to correct errors, but to restrain courts 504 518. Contempts 50ti 519. Decline of ne exeat writs 500 520. Its status in New York 50G 521. Purpose of the writ 507 522. Nature of debt 509 523. Trover 509 524. Partnership settlements 510 525. Divorce and alimony 510 526. No remedy at law 510 527. Affidavit 511 528. Power of a justice of the peace 511 529. Enforciug specitic performance — issuing in vacation 511 CHAPTER XVn. ATTACHMENT. $ 530. Statutory basis 512 531. Parties — non-residents 513 532. Joint claims 517 533. Mere absence 518 534. Intention to avoid process 519 535. Design to defraud creditors 519 536. Absconding or concealment 520 537. Having different residences 521 538. Non-resident creditors 521 539. Intending to remove property or dispose of it fraudulently. . . . 521 540. Title to concealed property 522 541. Construction of affidavits 522 542. Liability of corporations —national banks 523 543. Property of decedents' estates 524 544. Nature of affidavit 524 545. Actual levy 525 546. Debts not due 525 547. Kinds of property subject — supplementary note 525 CONTENTS. XXi CHAPTEE XVIII. GARNISHMENT. Page. i 548. General statement 528 54'J. Rights subject to ii'arnisliment 529 550. Singular Louisiana case 530 551. Cases of fraudulent sales 536 552. Assignee of promissory- note 537 553. Joint debts 537 554 Monej^ in the hands of an otlker, or in coui't — attorneys — treas- urers—judgment deiitors — juror fees 537 555. Agents 539 55G. Executors and administrators 539 557. Partnerships 540 55S. Municipal corporations 541 559. Private corporations 541 560. Railroad agents — bank officers, etc 542 561. Monej' deposited with specilic directions 544 5C2. Specific money in the hands of an attorney 544 563. Husband and wife 545 564. Salaries and wages 545 565. Contractors and employers 545 5W>. Indemnity mone_y 546 567. Claims under insurance policies 546 568. Guests 546 560. Lands fraudulentlj- mortgaged — fraudulent assignments 546 570. Consignees 547 571. Guardian of spendthrift 547 572. Set-off 547 573. Military bounties 547 574. Double garnishment 547 575. Effect of service of writ 547 576. Exemptions — wages 548 CHAPTER XIX. HABEAS CORPUS. j 577. Nature of the writ 549 57s. Power to issue it 550 579. Inquiry into jurisdiction 551 580. Imprisonment for obeying United States laws, etc 552 581. Power of appellate coui-t 552 582. Sentence by de facto judge 553 583. Fugitives from justice 553 584. Whether constitutionality of laws may be examined 556 585. Proof as to legalitj' of detention 557 586. Commitments for contempt 557 XXU CONTENTS. Page. f r>S7. Inquiry as to the nature and validity of process 558 588. Unlawful enlistments of minors 558 585). Custody of children 559 SflG. Criminal cases where indictment is found — sentence 563 501. Arrests on civil process 564 592. Bail 565 593. Joint indictments when only one is tried 565 594. Inquiries as to the legality of a sentence 565 595. Recognizance of appeal 565 596. Lunacy 566 597. Vacation — parties — appeals — jury , 566 598. Suspension of writ 566 CHAPTER XX. JURISDICTION OF MILITARY COURTS. f 599. Jurisdiction, ordinary' and extraordinary 571 600. Kesistance to drafts or enrollment — enticing aw'ay out of the state — enticing a minor into the army 576 601. Desertion 577 602. Officer whose commission is revoked — natvireof courts martial. 577 603. Spies 577 604. Mutiny and other oflences 577 605. Distinction of offences at law and under military rule — distinc- tion between martial and military law (in foot note) 578 CHAPTER XXI. TAXATION. § 606. Xature of the tax-taking power 580 607. Compelling the levy of a tax 582 608. Mandamus by the United States courts 583 609. Compelling the extension of a tax 584 610. Enforcing tax against delinquents 584 611. Nature of proceedings against delinquents 585 612. Right of court to make rules 585 613. Who ma}^ apply for judgment 585 614. Terms of court 586 615. Personal judgments 586 616. Injunction — when it will lie — general rule 5b7 617. When courts will not grant injunction 589 618. Where there is a remedy at law 591 619. One who seeks equity must do equitj- 593 620. How far courts will grant relief 594 621. Parties in a proceeding to enjoin 598 622. Legal remedies available — actions against officers and munici- pal corporations — set-offs 600 623. Protection of officers 602 624. Recovering back taxes involuntarily paid 603 CONTENTS. XXlll CHAPTEK XXII. POWER OP COURTS OF EQUITY TO SELL LANDS. Page. 625. General statement (508 626. Equity — no inherent absolute right to sell lands 608 627. The power is statutory G0!» 628. Law of the place controls 610 629. Proceedings in partition 610 630. Kinds of property subject to partition 611 631. Clear legal title necessary 612 632. And a present right of possession 613 633. Parties in general 615 634. Infant parties (517 635. Duplicity in partition proceedings 618 636. Sale of lands in partition 618 637. Partition should be entire and thorough 620 638. Parties in equity to proceedings to sell land 620 639. Sales at the instance of minors as plaintiffs 623 640. Estates in remainder 624 641 . Remainder-men must be parties 624 642. Confirmation of sales 625 643. Eesales 626 TABLE OF CASES. T^OTE. — In the following table an * denotes that the case is to be found referred to in the body of the page so marked. All other references are found in the foot-notes. Page Abbott V. Dexter 440 Abel V. Love 291 Abnev v. Whittcd *f)4 Abraham v. Hall 94 Acorn (The) 4.53 Adam v. Litchfield (i06 Adams v. Bark 269 Adams v. Evans .514 Adams v. Iron Co 614 Adams v. Lamar 106 Adams v. People 332 Adams v. Whitcorab .510 Akele}' v. Akeley 44.5 Albergottie v. Chaplin 615 Albrecht v. Sussman *90 Alderman v. Directors 470 Aldrich's Case 163 Aldrich v. Hawkins .52 Alexander v. Thompson 96 Alexandria Canal Co. v. 8wann.. 442 Alger v. Easton 600 Alicia (Tlie) 281 All re's Case 366 Allan's Case .5.50 Allen's Case 1S.5 Allen V. JSelchcr 399 Allen V. Bratton 240 Allen V. Burlington 604 Allen V. Drew. ." ,5s9 Allen V. Graves 623 Allen v. Jones 413 Allen v. Queensluiry *141 Allen V. Robinson. ." 4S2 Allen V. Kailroad 32, 149 Ailing V. Munson 430 Allison V. Commissioners 410 Page Alsberg's Case 56.5 Alston V. Newcomer 515, 517 American Land Co. v. Grady. . . 526 American Print Works v. Law- rence 41.3 Ames V. Bowland 48 Amv v. Supervisors *89 Anchors (The) 270 Anderson v. Chenney 540 Andrews v. Benhardi 46 Andrews v. Kailroad 524 Andrews v. AVallace 293 Andrews v. Wheaton 52 Angel v. Manufacturing Co. . . . 132 Angisola v. Arnaz 284 Anonymous {1 Hill, 669) 121 Ansley v. Alderman 96 Answer of the Justices 34 Apgar V. Trustees 48!) Appleton V. Appletcm 83 Application of Judges 168 Appo V. People 505 Armstrong v. Stone 561 Arnold v. Middlctown 592 Arnold v. Stvles 114 Ashuelot Bank v. Pear.son . ...97, 100 Askew V. Myrick 226 Askew V. Askew 399 Athelstone v. Moon& Willis.. *441 Atoclia's Case 36S Attacapas (The) 270 Attaquin v. Fish 59 Attorney Geneial v. Lawrence. 496 Atwell V. Zeluff 6o4 Aultman& Tavlor Co. v. Stein- all ; 74 (2.5) XXVI TABLE OF CASES. Png;e Aurora (The) 2Sl A mora Fire Insurance Co. v. .lohnson 76 Austin V. Learing 140 Atistralia (The) tlSl Averill v. Steamboat 150, 266 Jiahcock V. (Goodrich 493 Baheock v. Granville 604 Badger v. ^IcNamani 226 J5adniev v. ileaid.. 397 15a i ley V. Fitzgerald 21 Bailey v. Lacey 533 Baines v. Schooner 2u4 Baker v. Chapline 29 B;d- Beghul V. Swan 482 Beisch v. Co.xe 32 Belgard v. Morse 56S Belfast (The) 256, 267 Bell's Appeal 297 Bell V. Avres 96 Bell V. Gilbert *544 Bell V. Pierce 582 Bell V. Prouty 390 Bellamy v. Hawkins 22"> Bennett v. Burch 32- Bennett v. McGuire 136 Bentley v. Terry 550, *562 Bentley v. Weaver 121 Bernheimer v. Calhoun 283 Berry v. Johnson 291 Berry v. Linton 97 Bevard v. Young 136 Beverly v. Stephens 432 Bevey v. Carter *427 Bibb V. Commissioners 492 Billings V. Carver 189' I5illings V. Russell 603. TABLE OF CASES. XXVU Pilate Jiillino-.slv V. llariis 292 liilliiigsly V. State 102 J'.ind's Executor v. Administra- tor 299 liinyham's Trustees V. Guthrie.. 433 IJiningcr's Case 341 Biiisorn's Case *291 JJird V. Jenkins tit>l IJirdv. Perkins Bloom V. Burdick 71 P'loomtield. etc., Gas-light Co. V. liicliardson 421 Jj] yininan v. Brown (J13 Bo'ardnian v. Goldsmith ti02 Board of Commissioners v. Mar- kle 30 Board of Commissioners v. Thompson' 30 Board of Education v. Scoville . . 117 Roa/ZsCase 559 Bobh's Suceession 284 Bolil V. Fisher 624 Bogan V. Doughdrill *425 Jjogart's Case 309 Biigart V. Steam-boat 265 Jjolgians V. Cooke 62.5 Pxjlhia (The) 275 Bollman & Swartwout's Case.. .■'>91 Jiond's Ofi^i' 5:12 Bond V. Clay 294 Bone.steel v. Bonesteel 507 Honnell v. Holt 74 Bonner v. United States 358 Boone v. Poindexler 3 i^oone V. Revis (>4 Booth's (;ase 550, 558, 5(i6 Booth V.Todd 296, 29s Booze V. Humbird 4s2 Horger v. >K)ore *394 Boston, etc., Railroad Co. Case. 349 Puge Boston, etc., Mill-dara Co. v. Newman *420 Boston V. Brazer 443 Bostwick V. Skinner 28/ Bouldin v. Ewart 117 Bow V. Wilson 445 Bowden v. Perdue *25ii Bowditch (The) 271 Bowen v. Hixon 469 Bower v. ]McCormick 398 Bowers v. Green 56 Bowers v. Pomeroy 390 Bowie V. Ghiselin 293 Bowman v. Elj' 123 Boxes (500) of Pipes 275 Boyce v. Wilson 243 Boyce's Executors v. Grundy. . . 224 Boyd's Heirs v.Magruder'sHeirs 441 BoVd V. Glass 291 Bovlan V. Steam-boat 267 BoVle V. Rice 100 Bo"yle V. Bobbins 398 Boynton v. Rees 217 Brace v. Gradv 525 Bradtield v. Wait 497 Bradley V. Fisher 170, 172, 178 Bradley v. Norton 249 Bradshaw's Appeal 300 Brady v. Richardson 163 Brahmstead v. Ward 40 1 Brainard v. Head 60:> Brainard v. Van Kuran 546 Brattan v. Anderson 64 Brauner v. Chapman 7(> Brauser v. Insurance Co 542 Breck v. Smith 506 Breden v. Gilliland 292 Breed v. Mitchell 524 Bremer v. Bain *424 Bresnihan v. Sheehan 5:50 Brevoort v. Brevoort 61ii Brewer v. Springfield 592 Brewster's Case 179 Bridge Co. v. Wyandotte Co ... . 600 Bridges v. Sperry 619 Brig America (The) 268 Briggs V. Georgia 5!> Brigiit's Case 368, *579 Brinkley v. Brinkley Is2 Brioso V. Power 226 Britain v. Cowan 119 British Prisoners (The) 33S Brittle v. People 40 Bnjadwell v. People 5.'! Broadwell v. Smith *97 Brock V. Eastman 613, 614 J}rock V. (;ale J2s Broderick's Will 5.3 Brooks V. Allen 72 Brooks V. Delaplaine 149 XXVill TABLE OF CASES. Page linioks V. Slu'Uon 02 JiiDuuliion V. United States *.'}iil liiowirs Case 372, 558 JirowiTs Appeal 29li JJiDwii V. Brown 18S Hrown v Keener *418 Brown v. State 06 Brown V. United States 360 Brown v. Wel)ber 75 Brown v. Wheeler 443 Brown v. Woody 49 Browntield v. Weight 28 Bruggenian v. True 412 Brnner v. Meigs *240 Brunini v. Pera 225 Bryan's Case 368 Bryan v. Fonder 511 Bryant v. Fussell 524, 532 Bryant v. Hendee 527 Bryant v. Stephens 477 Bryce v. Insurance Co 245 Bryson v. Spalding 48(1 Buchanan v. Carry 435 Buck V. Buck . . . ." l-^S, 189 Buck V. Colbath 154, *350 Buckland v. Conwaj'^ 432 Buckley v. Dowle}' 55, 58 Bucknall v. Story 591 Buddington's Case 551 Buell V. Ball 601 Buell V. Cole 248 Buford's Case *167 Buf ord V. Buford 609 Bulkley v. Elchart 531 Bulkley v. Kedniond 289 Bullitt V. Musgrave 435 Bullock V. Bergman 420 Bull's Case 552, 563 Bulwinklev. United States 366 Bundy v. Dodson 577 Burgeuhofen v. 3Iartin 02 Burill V. Jewett 515 Burke v. Speer 589 Burks V. Burks 617 Burlingame v. Parce 64 Burlingham v. Deyer 396 Burlington Uniyersity v. Exec- utors '. 169 Burnell v. Everson 444 Burnhani v. Fond du Lac 531 Burnhara v. Kemptou 249 Burnley v. llice 232 Burns' Case 366 Burton's Appeal 610 Burton v Gleason 248 Burns v. Henderson 63 Burns v. Keas 612 Burr V. Hunt 597 Burrows y. People 120 Burt y. Executors 2!s4 Page Burt V. Weeks 294 Busley v. Noland 605 Busch V. Hardwicke 504 Bush V. Lindsey 29s Bushnell, Ex parte 44 Buysey & Co. v. Nelson 66 Butler V. Carter 108 Butler V. Supervisors 482 Butler V. Wagner 95 Butterworth's Case 447 B3'ers v Danley 614 Byrne v. Edmonds 243 Cabarga (The) 267 Cable V. Alvord *300 Cable V. Cooper 12 Cabot Bank Appeal 164, 165 Cadigan v. Br. wu 227 Cages Case 487 Cain V. Simpson *393 Calayeras Co. v. Brockway 487 Caldwell v. Stewart 540 Calhoun v. State 119, 120 Calhoun v. Whittle 533 Call's Case 553 Call V. Pike 180, *395 Callahan v. Judd 54 Callahan v. Xew York 4s Calley v. Saybrook 103 Campbell v. Conner 291 Campbell v. United States 303 Campbell V. Wilson 75, 109 Campfield v. Johnson *387 Canal it Banking Co. v. Comly. 520 Canal-boat Tremaine '. . 208 Canal-boat Walsh 26s Carey v. Gunnison 524 Carlaga v. Dryden 487 Carlin v. Cavender 580 Carpenter v. City 226 Carpenter v. Shepardson 75 Carpenter v. Spooner 73 Carroll v. Commonwealth 12> Carsori v. Commissioners 5s Carter's Appeal 300 Carter's Heirs v. Administrator 290 Carter v. Administrator 211 Carter v. Carter 425 Carter v. Taylor 61.'! Carter v. Wilson ., 520 Carver v. Carver 74 Carville v. Additon 00:! Casebott v. Donald 533 Casey's Case 34s Casey v. Davis 539 Casii}' V. State 12 1' Cate V. Farber 469 Cavedo v. Billings 224 Center v. McQuesten 530 Center Township v. Hunt 599 TABLE OP CASES. XXIX Page Central Bank v. Gibson 76 Central Nat. Bk. v. Kichmond Nat. Bk 524 Chace v. Benhum 123 Cliadbourn v. Chadbourn 430 Chainev. Wilson *5HJ ( 'haisley v. Brewer 531 Chamberlain v. Chandler 274 Chambers v. H-ulges 165 Chambers v. Jones 71, 618, 625 Cliapin V. James *15() Cliapin V. Kailroad 541 Chajiman v. Dalton *440 Chapman v. Morgan 47 Chariton Co. v. Moberly 521 Chase v. Cheney 147 Chase v. Hale 401 Chase v. Hathaway 286 Chase v. Whiting ." 2s3 Ciiegaray v. Jenkins 603 Cherokee Nation v. Georgia. . . . *17 Chess' Appeal 297 Chests (350) of Tea 275 Chew's Exeeutors v. Chew 292 Chiniquy v. People 589 Cliipman v. Montgomery 225 Chir.ic V. Chirac *451 Chi-iholm v. Coleman 172 Chittenden v, Rogers 232 Christern"s Case 449 Christy v. Newton 409 Clmreii in Chelsea v. Slack 47(i Church V. Crossman 32, 74, 115 City of Chicago v. Kailroad. . . . 156 City of Chicago v. Sansum 583' City of Jeft'ersouviile v. Ferry- boat 268 City of Opelika v. Daniels *150 Clapp V. Bromagham 614 Clapp V. Foster 163 Clapp V. Walker 541 Clark's Case 348, 370 Clark V. Bininirer's Case 351 Clark V. Axfofd 603 Clark V. Bininger 348 Clark V. Conniionwealth . . .15>^, 159 Clark V. Demue 398 Clark V. Directors 4S0 Clark V. Holmes 30, 74 Clark V. Lamb 159 Clark V. Nort on 581 Clark V. People 120, 178, ISO Clark V. Sawyer 122 Clarke v. Graham 610 Clarke v. Navigation Co 217 Clarke v. Perry 284 Clason V. (Jorlej^ SO Clay V. Barlow 100 Clayton v. Wallace 168 Claywell v. Sudderth 152 Cleghorn V. Postlewaite 596 ("leland v. Fish 239 Clement v. Everett 594 Clement v. Foster *42G Clepper v. State I4s Cleveland V. Chamberlain 186 Cleveland v. Road Board *250 Clifl'ord V. Cabiness 401 Clippinger v. Fuller 49:i Cloman v. Staton 75 C'lough V. Buck 535 Clyde's Case 369 Cobb's Executor v. Buuns 297 Cobb V. Howard, 27 1 Coburn v. Hanely 211 Cochran v. Ingersoll 188 Cocke V. Finley 288 Cody V. Ravmund 283 Coev. Railroad, 413, *416 Cofer V. .Miller (523 Coffee V. City 4(j Coft'ey V. Coffey 622, 625 Coflin V. Cottle". 430 Coflin V. Schooner 270 Cohen's Case 2, 557 Coit V. State 133 Cole V. Colby 226 Cole V. Hines *390 Cole V. Johnson *231 Coleman's Appeal 44, 72, 79 Coleman v. Chisholm *]9 Coleman v. Coleman 612 Coleman v. Grul)b 43.'! Coleman v. Semmes 442 Coleman v. Tennessee *569 Collamer v. Pa ige 11 College Street, in re 45 Collins V. Draining Co 97 Collins V. Plammack 1G4 Collins V. Johnson 295 Collins V. Smith 547 Collins V. State 117 Colly V. Doughty 226 Columbian Book Co. v. De Gol- yer 531 Cply V. Leonard 304 Colyer's Case 550 Commissioners v. Bank 37 Commissioners v. Bond 531 Commissioners V. Brown 591 Commissioners v. Brysen 49s Commissioners v. Detroit 59."! Conmiissioners v. Martell ...... 30 Couunissioners v. ]\lcCarty 59 1 Commissioners v. People ex rcl. (111.) 47s Commissioners v. Philadelphia . 490 Commissioners v Spitler 5(i5 Commissioners V. Swayne 517 Conunlssioners V. Thompson. .. 30 XXX TABLE OF CASES. I'M, lie C'ominouwealtli v. Allt^i 4.')1, 4(i8 Coiiiinonwralth V. Andrews 332 C'oimiKunvi'ullh v. Atlifarni 4G;"1 (.'iiiuiuoiiwcalth V. Bank (Pa.).. 4(33 <\)inm(m\voalth v. Bland. iig. ... 32s {'omnionwralth v. Hri<];;s 5G2 Coniniomvi-altli v. Buford *1()7 Conunonwcalth v. Bnnn 2S!) Conunonwcalth V. llurding. . .. 164 ('onnixonwealth v. Canada 401 Commonwealth v. Carey Im- ])rovemenl Co 5S2 Coniraonwcaltli v. Charlestown 408 Comnunnvcalth V. Coonil)S 407 Commonwealth V. Cushing ,o.5S Commonwealth v. Dillon 461 Commonwealth V. Downes 5.58 Commonwealth v. Elhvel! *313 Commonwealth v. Emmons *313 ('(mimon wealth v. Essex Co.. . .*420 Commonwealth v. Farren *313 Commonwealth v. Foster . 392 (\)mmonwealth v. Fowler 460 Commonwealth V. Gamlile 172 Commonwealth v. Gillespie. . . . 32S Commonwealth v. Goodman . . . *3 13 Commonwealth V. Hamilton. .. HGl ('onnnonwealtji v. Hammond. . . 561 Commonwealth V. Harrison.... 5')S Commonwealth V. HawUes. .. .. 158 I'ommonwealth v. Hill 326 Commonwealtli v. Holder 332 Commonwealth v. Jacoljs 577 Commonwealth v. Jones 4(>3 Commonwealth v. Keenan 160 Commonwealth v. Kirkl.ridge. . 566 Commonwealth v. Leatch 217 Commonwealth V. Lockw^ood... 314 Commonwealth V. Maeloon. ... 319 Commonwealth v. MeCloskj'.... 61 (..'ommonwealth v. 3Iil]s 101 Commonwealth v. Mitchell .... 472 Commonwealth v. Peters 106 Commonwealth v. Savings Bk.. 589 Commonwealth v. iSmall 465 Commonwealth V. Smith. . .328, 465 Commonwealth v. Tabor . . 1S9 Commonwealth v. Todd 82 Commonwealth v. Upricliard . . 332 Commonwealth V. Walker 463 Conlin v. Aldrieh 499 Connecticut v. Caldwell .526 Connell v. Voorhees *360 Oonnory v. Swift 234 Conover v. Mayor 152 Conover v. Wood 1^4 Conwaj' V. Armington 532 ('onwaj' V. Duncan.. *426 Conway v. Waverly Township.. 593 Con3"ers v. Brown 236 Page Coohan v. Brvant 4ti Cook V. Berth 160 Cook V. Renick 214 Cook V. Treasurer 472 Cook V. Walker 116 Cooke V. National Bank 524 Coombs V. Commissioners *415 Coon V. Snyder 40o Cooper V. Brewster 125 Cooper V. Xelson 501 Coojier V. Water-power Co 612 Coopwood's Case *566 Coopwood V. Prewitt 165 C(jpe V. Kam.say 169 Copeland v. Beau 3>'*9 Corhett's Case 370 CorJiego V. Strafford 591 Corley v. Bean 236 Cornelius v. Morrow 231 Cornell v. VV ilson 394 Cornwallis' Case 317 Corwin v. Shoup 61s Cotton Press Co. v. Chevelicr.. 104 County Treasurer v. Dyke 37 Cowell V. Patterson *563 CoAveu V. Doddridge 486 Cowen V. Quinn 76 Cox V. Graham 390 Cox V. luglestone 611 Cox V. Izard 241 Cox V. Murray , 267, 269 Cox V. Stanton ;;98 Coxe V. Smith 613 Crafts V. Hall 232 Craighead v. Martin *394 Crain v. Gould 533 Crawford v. Waterson 83 Crawford v. Wiuglield 232 Crerar v. Railroad 548 Cromwell v. Bark 270 Cross' Case 368 Cross V. DeValle 235 Cross V. Moulton 400 Croxall V. Sherard 624 Crutcher v. Herd *S9 Culbertson v. Tomlinson 398 Culliton V. United Stales 365 Cully V. Laybrock 100 Cummings v. Garvin 532 Cunningham v. Hall 260, 527 Cunningham v. State 312 Curry v. Woodward 533 Curtis. V. Alvord 533 Cusliing V. Sambold *93 Cutler V. State *313 Cutting's Case 472 Cutting V. Gi]l)ert COO Dailev v. Litchtield 246 Dake"v. Miller 74 TABLE OF CASES. XXXI Dale's Case 352 Dalton V. J.ihbj' 2o;5 Dana v. Nelson 2.'U Danalier V. Pieni iss .'J47 Dane v. Derby nOU Dane v. Holmes ; , SoG Danfoith v. Thompson 4S Daniel Ball (The) 2:^1 Daniel v. Smith 4") Daniels v. Daniels *12s Daniels v. Logan r)2(J Daniels v. Moses (ils Danton v. Woods (il4 Daiap V. Westei-lage 5;')^ Darling v. Conklin ;J99 Darrow v. Morgan 6G Darst V. Collier *42(j Dart V. IJank 71) Dartez v. Lege *;';') Davell V. Davell 404 David V. Blundell r^'A Davie v. McDaniel 2s3 Daviess Co. Court v. HoAvard. .*128 Davis' Case (31), 343, 5.34 Davis v. Armstrong *344 Davis v. Cbeevers 299 Davis V. Child 2S1 Davis V. Cilley *42(; Davis V. Ilarkness 231) Davis V. Henry 425, *426 Davis V. Leslie 277 Davis V. Meretlith 548 Davis V. Packard 41 Davis V. iSturlevaut 188 Davis V.Wells Gil Davison v. Seal Skins 2G3, 677 Dawson v. Shaver 212 J)ay v. Callow . 493 Day v. Springlield 5U4 Dayton Mining Co. v. Seawell. 413 Deacon v. Powers *391 Dean v. Nelson *87, *9(i Dean v. Gleason 590 Dean v. Smith 510 J^e IJemer v. Drew 235 De Castro' v. Kichardson 12s Decker v. McGowan 5slt Deeson v. United States 3G5 De Fisk v. Norvel 28T Fitch v. Waite 519 Fitzpati-ick v. Beatty 247 Flagg V. Bates 533^ Flat Swamp, etc., Canal Co. v. McAllister 3 Fleet V. Youngs 38!> Fleming's Case 475 Flower v. Allen . . .■ 112 Flovd Co. V. Cerro Gordo Co. . .*117 Floyd V. Gilbreath 601 Flvun V. Commonwealth 101 Foley V. Hill 226 Foley V. People 4 < Foot V. Stevens 23 Ford's Case 5.50 Ford V. Babcock .31 Ford V. Clough (i03 Ford V. Commonwealth IGO Forest v. Forest 511 Forrester v. Alexander 91> Fort V. Battle . .« 429 , 441 Fort V. West *162 Foster v. Glazener 15(> TABLE OF CASES. XXXlll Page Foster v. Mc Adams 393 Foster V. United States 3(J5 Four Cribs of Lumber 271 Fowler v. Bishop 100 Fraulv V. Lee 96 Fredonia, etc., V. Wait 391 Free y. Meikel 2-1:4 Freeman v. Hartman 240 Freeman v. Howe 152,* 350 Fremont v. Mariposa Co 590 French v. Freeman 390 French v. Holt 388 French v. Insurance Co 79 French v. Richardson 442 Fretz V. Bull 256 Frisby v. Ballance 147 Frizell v. Rogers 411 Frost V. Brisbin 514 Frue V. Loring 225 Frumpton v. Pettis 404 Fuller V. Bradley 615 Fuller V. Grand Rapids 99 Fuller V. Jewett 539 Fuller V. O'Brien 532 Fuller V. Sparks 96 Fuller V. State 214, 218 Fuller V. Stephens 132 Fulton V. Lot lis 242 Furber v. Chamberlain 434 Gadden v. Pierson 529 Gage V. Gage 616 Gage V. Rohrliack 248 Gage V. Schroder 71 Gainty v. Russell 249 Gallahd v. Gal land 188 Gale, Administrator, v. 3Iichie. 169 Galveston Co. v. Gorham 605 Gamber v. Holben *93, 101 Gamble v. Jordan 287 Gannen v. Fritz 132 Gardner v. Gardner 283 Gardner v. L>y 137 Gardner V. Thomas *111,112 Garland's Case 176 Garlick v. Dunn 126 Garr v. Gomez 444 Garrand's Estate 299 Garrison v. Hoj't 394 Gasheere v. Apple 522 Gas-light Co. v. Merrick 536 Gatchett v. McCall 605 Gates V Bennett ,t26 Gates V. Wagner *;593 Gault V. Wailis 169 Gay V. Eaton 130 Gebhart v. p]ast Saginaw 47i} Gene.see Chief (The) 254, 255 George v. Watson 288 Page Georgia, etc.. Loan Association V. McGowan 74 German Reformed Church v. Seibert 144 Gest V. Railroad 149 Getchell v. Chase 532 Gibbons v. Bressmer 'I'ii Gibbons v. United States 361 Gibson's Case 563 Gibson v. Gibson 133 Giles V. Ash 535 Gill V. Stebbins 82 Gillett V. McCarthy 527 Gillett V. Richards *3y8 Gillette V. Hartford 606 Gilliam v. McJunkin 564 Gilliland v. Administrator 296 Gilmore v. Fox 598, 600 Gilmore v. Jacobs 395 Gilmore v. Norton 600 Gimstead v. Buckley 168 Ginn v. Rogers 48 Glaser's Case 352 Glass V. Hulbert 244 Glavecke v. Tijirina 164, 168 Glaze V. Blake .399 Glenn's Case 367 Glen V. Hodges *111 Golson V. Nichoff .345 Goltra V. Sana.sack 245 Gonzales v. Alinor 278 Gooch V. Stevenson 213 Goodrich v. Hulbert 446 Goodnow V. Moulton 606 Goodwin's Case Isl Goodwin v. Hallowell 404 Goodwin v. Thompson 212 Goram v. Merry *115 Gordon's Case 504 Gordon v. Ogden 1U3 Gore V. Masten (i02 Gorham v. Millard *426 Gosele v. Bimeler 611 Goss V. Commissioners 522 Gott V. Brigham 74 Goudy V. Hall 71 Gould's Case 577 Gould V. Atlanta 596 Gould V. Glass 403 Gould V. Torrance 136 Gourley v. Shoemaker 122 Governor v. Dodd 38 Governor v. Woodworth 38 Grady V. Hall 526 Graham v. Dewitt. 290 Graham v. Graham 619 Graham v. Houghtalin, 295 Graham v. Ringo 45 Graham v. Stucken 509 XXXIV TABLE OF CASES. Page Grand Rapids Bridge Co. v. I'raniic 458 Graiul Kapids v. Blakelej *607 (iraiiiic"s Case! 552 (Tiant ct O'Barr's Case 474 Grant v. Lams 95 (Tiant V. Lavis 45 Grant v. National Bank 34(5 Graves v. Shocfelt 394 Gray v. Larrimore 2-^. 42 Gray v. ilaxwcll 530, 537 Gray v. bteam-boat 28 Gray v. Wilson , . . 65 Greathouso's Case 5(j4 Grc't'ii V. ,Muuif()rd ; 589 Green v. Spring 24S Gi oen Co. v. Ituse 299 Greene's Case 505 Greene v. Darling 237 Greene v. Tripp 53iJ Greenough's Case 553 Gres: Case 448 Gregg V. Wyun 55) I Gregory's Case 564 Gregory v. Gregory 616 Gregory v. Kauouse *387 Greslxam v. Peterson 509 Griffin's Case 553 Griffin, Administrator, v. Lomer 94 Griffin v. Domiuguez 137 Griffith V. Burton (;23 Griffith V. Frazier 11, 288 Grigg V. Landis 235 Griggs V. Banks 527 Grignon's Lessee v. Astor 8, 2!:i Grim v. School District 607 Griswold v. Stonington 443 Groome v. Guinn 483 Grubbs v. Cotter 527 Guernsey v. Lovell 393 Guest V. BrookJvH *250 Guilford v. Love! 32 Guilford V. Maden 294 Gurney v. Crockett 267 Hacker v. Barton 221 Hacke.tstown Bank v. ^litchell 515 Hackne}' v. State 218 Haddock v. Waterman 7G Hadle}- v. Bryer.-, , . 526 Haeberle v. Barringer 526 Haggart v. Morgan *515 Haines' Appeal 234 JJaines v. Haines. is4 Hale & Home v. Lawrence.... 412 Hall V. Barnes 118 Hall V. Bowker 54s Hdi V. Hall ,,[ 44 Hall V. Howd 30 Hall V. Hudson 267 Page Hall V. Wager 346 Halls Heirs v. Hall 2S9 Halley v. Jackson *513 Hallowbush v. McConnell 12 Halstead v. Halstead 619 Halstead v. Leaman *426 Ham V. Railroad 47s Ham V. State 77 Hambleton v. People 461 Hamilton's Case 179, *502 Hamilton v. Kneeland 211 Hamilton v. Millliouse *393 Hamilton v. State 332 Hammond v. Baker 151 Hancock v. Coiyer 533, 545 Hancock v. Henderson .' 6-' Hancock v. Baker *3ll HandGokniining Co. v. Parker*413 Handy v. Xoonan 224 Hanks v. Xeal 2>3 Hanneban v. Nichols 510 Hannewiukle v. Georgetown. . . 5^9 Hanson v. Willard. . ." 612 Hany v. Randolph 131 Hapgood V. Doherty 94, 97 Hardcastle v. Railroad 477 Hardeman v. Battersby 149 Hardy v. 31ills ' 612 Harker s Case 55 Harkness v. Frase.-s 241 Harlan's Estate 2^8 Harlan v. Langliam 61'.! Harney v. Charles 5;i7 Harney v. Railroad 591 Hai'rington v. Brown 444 Harrington v. Higham 439 Harrington v. People 4o3 Harriott v. Railroad sii Harris" Case 557 Harris, Attorney General, v. Railroad ." 4,)^ Harris v. Deunr *S9 Harris v. Executors 55 Harris v. Insurance Co 46, 71 Harris v. Slaght 231; Harrison v. Harrison 296 Harrison v. Pullman 9 Hariison v. Vines 592 Hart V. Smitji 589, 593 Harter v. Christoph 244 Hartman's Case .51:4 Hai-vey's Case 3(i:( Harvey v. Tyler 25 Harvey V. United States 354 Haskell v. Haven 404 Hassam v. Day 612 Hastings v. Farmer S2 Hatch V. .Johnson 116 Hatch V. Supervisors 40!i Hathaway v. Davis 525 i TABLE OF CASES. XXXV Page Haven v. Needham ;jss Haven v. AVentworth 52!t llaverstick v. Trudell 203 Hawes v. Maunej' 1(J8 HawCS V. Orr 149 Ilawey v. Dakin 67 Hawkins v. Commonwealth .... 460 Hawkins v. Sumpter Co 601 Hawthorne v. Colyer 533, 54;j Hay V. People 458 Hayes v. Hayes ■. . . . 2D3 Hay ward v. Clark 534 Hay ward v. Ramsey 131 Haywood v. Collins 58 Haywood v Johnson *116 Hazard v. Durant 190 Hazen v. Essey Co 420 Headt v. Wetmore 193 Hearne v. Brown *427 Hearst v. Pujol 246 Heath v. Bank 226, 248 Heath v. Kent 55 Heaton's Case 624 Hilbourn's Case 333 Hine v. Levee Commissioners. .*58S Heir.s v. Adams 284 Heller's Case 185 Melioway v. Chiles 524 Hemick v. Johnson 400 rfelins v. Clifldbourn 274 Hempley v. Schneider 96 Henderson v. Allen 118 Henderson v. Desberough 399 Henderson v. Ivissara ,s2 Henderson v. Pope 107 Henderson v. Tennessee 81 Hennen's Case 467 Henry v. Ellis 199 Henry v. Gregory 592 Henry v. Tilson ' 101 Henry v. Tupper 150 Henslie v. iState 127 Hepburn v. Jones 446 Hepper's Case 185 Hercules Life insurance Co.'s Case 345 Heritage v. Wilfory 388 ilernandez v. State 564 Herren v. Campbell ,' 39s Heslep v. San Erancisco 446 Hess v. People , 585 Heuistis v. .Johnson 225 Hewett V. Lucas 233 Heydenfelat v. Towns 164 Heyward's Ca.se 337 Hey wood v. Brooks 546 Hickee'.s Lessee v. Stewart 42 Hickman v. Jones 16 Hickman v. Painter 150, 226 Hicks V. Chapman 547 Pase Hidtlen v. Davidson 4ii Higbie v. Edgarton 185 Higginbottom v. Short 618 Higgins V. Deloach loi Hill's Case 551 Hill V. Carter *387 Hill V. Crandall l8s Hill V. Figley 603 Hill V. Gregory 617 Hill V. Hardy 3(H) Hill V. Proctor. 224 Hill V. Wells 396 Hillnian v. Werner 526 Hilman v. Martin 94 Hills V. Chicngo 5S(; Hills V. l)ay 612 Hills V. Mills 49 Hills V. Moore 527 Hine v. Hussey 295, 300 Hinze v. People *464 Hitchcock V. Aiken 69 Hoagland v.Delawai eTo\vn<;hip 593 Iloirman v. Fitzwlllia)n 548 Hoffman v. Sparling *123 Hoffman v. AVetberell 530 Hogan V. Steam-boat 266 Hoglun V. Carpenter KiO Holcorab V. Cornish 392 Holden v. Eaton 603 H'.lker v. Parker 432 Hollis' Case *344 Hollman v. Bennett 295 H,olman v. Mayor 183 Flolmes' Case 339 Holmes V. Governor 339 Hollowa}' v. Chiles 524 Holloway v. Holloway 499 Homer's' Appeal ....". 293 Homestead Co. v. Railroad .... 605 Honej' V. Davis 38 Hooper v. Day *543 Hoover v. Reilly 245 Hoover v. Yoi'k 9 Hoppe V. Byers 99 Hopper V. Fisher 611 Hopsen's Case 551 Horn V. Corvambias 526 Horn V. Lockart 21 Horton v. 3IcClarv 619 Horton v. Sledge.' 613 Houghtaling v.' BaM 204 Houghton Co. v. Auditor 474 Housh v. People 29 Houston V. Aycock 625 Howard v. Pierce. 506 Howell V. Railroad 7'.» Howey v. Goings 610 Howland v. Eldridge 491 Hoyle(The) " 271 Hoyt V. Smith 529 XXXVl TABLE OF OASES. Page Hoxie V. Ellis 617 Hoxie V. Vricc 249 Hubbard V. Insurance Co 122 riuber V. Ziinmorman 435 Murk V. Railroad 590 Hudson V. Atchison Co 599 Hudson V. Executors 526 Hulfv. Kiplev 239 Hurt' V. Shepherd 132 Huii-ii V. llii^s-s 8 Hu'iihes' Appeal 284 Hun-hcs V. Devlin 612 Huuiies V. Hughes 497 Huglies V. Martin 46 Hughes' Adm'rv. Stinson 16 Hull V. Harris 190 Hull V. Thomas 184 Humphreyville v. Culver 71 Hunnewell v. Taylor 613, 618 Hunt V. Administrator 245 Hunt V. Hunt 66 Hunt V. Jennings 63 Hunt V. Kockwell 100 Hunt V. Wickwire 401 Hunter v Chandler 463 Huntinton v. Uisdon 533 Huntress v. Eflingliam 410 Hurd V. Slaten : . . 292 Hurd V. Tombes 47 Hulburt V. Hicks 530 Huss V. Morris 243 •Hutchius v. Johnson 429 Hutts v. Hutts *124 Hvam's Succession 162, 168 Hyatt V. Bates 230 H3^de V. State 457 Improvement Co. v. Hoboken . . 250 Infanta (The) 260 Inhabitants, etc., V.Aroostook Co 410 Inhabitants, etc., v. Essex 408 Inhaliitants, etc., v. Griffin 443 Inhabitants, etc., v. McCulloch. 407 Inhabitants, etc., v. Norfolk . . . 405 Inhalntants, etc., v. Waldo Co.. 408 Inhabitants, etc., v. Weir ..... 95 Insurance Co.'s (Jase. . .185, 345, 349, 352 Insurance Co. v. Charles 603 Insurance Co. v. Collins 109 Insurance Co. v. Dickerson . . ..*128 Insurance Co. v. Dunham 269 Insurance Co. v. Hicks 185 Insurance Co. v. Holbrook *544 Insurance Co. v. Johnson 7b" Insurance Co. v. Judge *116 In.surance Co. v. Owen 58 Insurance Co. v. Pollock. . .581, 596 Insurance Co. v. Portland 587 Insurance Co. v. Weeks 529 Page Insurance Co. v. Wilson 284 Ireland's Case 189 Iron Mountain Co.'s Case 348 Ironsides (The) 349 Irwin v. Lee 495 Irwin V. Scriber 285 Isett V. State 64 Ives V. Vanscoyoc 534 Jack V. Railroad 74 Jackson's Case 559 Jackson v. Dains 114 Jackson v. Lumley 2 Jackson v. Sherwood 395 Jackson v. Steam-boat 256 Jackson v. Warren 131 Jackson v. Whitfield 398 Jackson v. Wilkinson 397 Jakewa\^ v. Barrett 388 James v. New Orleans 606 Janitor's Case 132 Janney v. Buel 225 Jecker v. Montgomery 280 Jetferson City v. Railroad 603 Jeffrey v. Owen *387 Jeffries v. Hardin 48 Jenks V. Osceola Township 531 Jenkins v. Fahey 624 Jenkins v. Gillespie 432 Jenkins v. Simms 9 Jersey City v. Fitzpatrick 415 Jersey City v. Lembeck *250 Jerusalem (The) 281 Jewett's Case 622 Jewett V. Bowman *149,-*510 Jewett V. Miller 162 Jilz's Case 558, 566 Jochimsson v. Bank 28>i John Jay (The) 260 Johns v. Smith 622 Johnson's Case 480 Johnson v. Administrator 296 Johnson v. Daltou *111, 112 Johnson v. Francis 94 Johnson v. Herbert 106 Johnson v. Howard 541, 547 Johnson v. Kimbro 113 Johnson v. Lowry 523 Johnson v. Von Kettler 58 Johnson's Administrator v. Lon- guine 296 Jones V. Hoffman 4s Jones V. Kenuicott *511 Jones V. Sumner 589 Jones V. United States 359, 363 Jones V. Winchester 45 Jordan's Case; 572 Jordan v. Henry *395 Juands v. Tavlor 279 Judd v. Fox Lake 592 TABLE OF CASES. XXXVll Page Judevine v. Hatton 389 Judge of Probate v. Laue 285 Kahl V. Love 606 Kaine's Case 338, 551, 556 Kane v. Clough 535 Kane v. Fond du Lac 434, 446 Karne's Estate 611 Karne v. People *J26 Kart haus v. Ferrar 435 Kaufman v. Walker 626 Keal V. Judge 55 Kearnan's Case 550 Keiler's Case 54i) Keenau v. Keenan 454 Keiser v. Yandes 45 Keith V. Harris 539 Keith V. Insurance Co 243 Kelly's Case 351. 392 Kelly V. Crawford 443,' 444 Kelly V. Hacket 162 Kellv V. Hooper's Executors. . . 44 KellV V. ]Madden 612 Kelly V. Noyes 603 Kelly V. iSage 3(t7 Kellogg V. Coller 136 Kellogg V. Kussell 348 Kellogg V. Waite 548 Kenipe's Lessee v. Kennedy.. . . 23, 24, 32 Kendall v. Bates 430 Kendall v. Stokes 476 Kendall v. United States 35, 476 Kennedy v. Cochrane 110 Kennedy v. Greer 12 Kentuck}' v. Dennison 476 Kentucky v. Governor 485 Kerosene Oil Co.'s Case 34s Kerrigans Case 178 Kesler v. Stark 616 Keutzler v. Railroad 536 Keyser v. Rice 7, 532 Kidder v. Peoria 411 Kilgore's Case 179 Kil bourne v. St. John 591 KinihairsCase 371 Kimball v. Fisk 301 King v. Canal Co 61 King v. Manufacturing Co. . . . *426 King v. Parks 401 King V. Thompson 527 King V. Vanderbilt 123 Kingbury's Case 337 Kingsland v. Frorsham 579 Kirkpatrick v. Cooper 399 Kitchen v. Crawford 77 Kitchen v. Sheets 618 Klaise v. State 169 KIcimstuber v. Shoemaker 46 Klingel v. Palmer *393 Page Knapp v. Fisher *446 Knight v. Clyde 5.'. Martine v. Lowenstein 132 Mason v. Johnson 605 Mason v. Thomas 135 3Iaslerton v. Beers 241 3Iastin v. Marlow 45 Mathie v. Mackintosh 49 Matlock V. Lane 96 Matteson v. Rosendale 607 Matthews v. Hobbs *566 Matthews v. Morris. , 388 Mathewson v. Sprague 283, 2S9 Mattingly v. Grimes 531 Mauran v. Insurance Co ■■'■-IS TABLE OF CASES. XXXIX Page Mauroc v. Almeida 260 Max's Case •''64 Maxwell's Case r)53 Maxwell v. Rives 183 "Maxwell v. Vansant 115 Mayberry v. Kellv 6 Mayor v. Baldwin 592 Maj'or V. Furze 479 Mayor v. Ploward -"isG Mayor v. 3[cKee 5s7 Mayor v. Hoot 531 Mayor v. liowlaud 531 Mays V. Taylor 116 Mays' Heirs V. Administrator.... 290 ^Ic All ley's Appeal 146 McCartan v. Vansick 190 ]\[cCartney v. Bostwick 237 McCarty v. ]\Iarsli 453 McCauley v. Weller 161 MeClanev. Newark 594 McClane v. White 247 McClary v. llartwell 414 3IcClelian v. Dowling 475 3IcCloskev v. McCorinick 226 .^IcCollum V. White 514 McComb V. Turner 441 ^leComb v. Weaver 1^4 McConnell v. Kibbe., 611 McCormack v. Bank .' 105 McCormick's Appeal 295 MeCorniick v. Ives 256 McCormick v. Railroad 74, 79 MeCorniick v. Siillivaut t>10 McCormick v. Wheeler 133 McDonald's Case 55s McDonald v. Dickens 102 McI)ouIorris v. Whitehead 181 Morrison v. Moat *191 Morrow v. Weed 77 31orse v. Davis S91 Morse v. Towns 547 7»losos V. Julian 165, 167 Moses V. Kearnev 473 Moses Taylor (The) 257, 271 Mullee's Case 190 Muller & Brenton's Case 347 Munkers v. AVatson 486 ]\luns V. Dupont 94 Mnnsen v. ]\Iiller 595 ]^r.nii6 Osborne v. Butcher 391 Osborne v. Schutt 534, 53G Osceola Tri])e of Bed Men v. liost, Administrator 142 Othello (The) 272 Overly's Executors v. Devisees . 430 Pacific (The) 259 Pacific Hotel Co. v. Lieb 596 Packard v. Kino; 611 Packman v. Meatt 618 Padelford's Case 372 Page's Ca.se 553 Paint (The) 270 Palmer v. Davis 442 J'almcr v. Napoleon Township. 593 Palmer v. Noyes 540 Pasgond's Case 372 Parish V. Marvin 114 Park's Case 552 Parky. Cauley 121 Parker v. Benjamin 243 Parker v. Parker 510 Parker v. Sbroi)sliirc 102 Page Parks v. Fry 625 Parks V. Miller 586 Parmelee v. Johnson 39(i Parrott v. Neligh (J22 Parsons' Case 582 Parsons v. Lyman 296 Pate V. Shafer 104 Patterson's Case 369 Patterson V. Blake 611 Patterson v. Pratt 537 Pattison's Case 558 Patton v. Campbell 226 Patton V. Gates 545 Patton V. Tallman 301 Patton V. Wagner 611 Paul's Case 455 Paul v. Arnold 95 Paul V. Benton 94 Paul V. Paul 623 Pauline (The) 267 Paysou V. Dietz 349 Peale v. Pliipps *350 Pearce v. Atwood 396 Pearl v. Harris 64, *427 Pearl v. Nashville 226 Pearson's Case *553 Pearsons v. Raulett 490 Peck v. Jcnness *350, 527 Pendleton v. Prestridge 360 Penn's Case 347 Pennebecker v. McDougal 94 Penniman v. Redman 445 Penniwit v. Foote 21 People v. Adams 77, 326, 327 People V. Albany Railroad 467 People v. Almy.' 298 People V. Assessors (N. Y.) 501 People V. Attorne}' Geneial (N. Y.) 497 People V. Auditor (Midi.) 489 People V. Auditor (N. Y.) 492 People V. Bacon 487 People V, Baker 120, 121 People V. Benjamin 180 People V. Bennett 492 People V. Board of Education (Mich.) 499 People V. Booker *:)(\a People V. Brennan 187, 493 People V. Brooks 531 People V. Brower 184 People V. Jirvan 189 People V. Burke 331 People V. Bush 3 People V. Callaghan 469 People V. Carpenter 466 People V. Circuit Court (.Midi.) 503 People V. Clark 41, 468, 500 People V. Commis-^ioncrs (HI.).. 478 Peopb; V. Coiiiini^sioners (X. Y.) 479 XliU TABLE OF CASES. People V. Contract insi- Board (N. Y) i^G People V. Cook 124 People V. Curyea 498 People V. Dannatt 4(3 People V. Davis 117 IVople V. De Camp ISO People V. Detroit 475, 497, 583 IVople V. Dwinelle 187 People V. East Saginaw 605 People V. Edwards 500 People V. FairbiHT 496 People V. Fairchild 474 People V. Ferris 478 People V. Few *192 People V. Folsom 213 People V. Foos 409 People V. FuUerton 552 People V. Gas Co. (IST. Y.) 495 People V. Governor (Mich.)- • -37, 38 People V. Governor (111.) 38 People V. Gray 287, 565 People V. Guerra 163 People V. Hallett 487 People V. Halse}- 501 People V. Hartwell 466 People V. Hatch 472, 475 People V. Hayl 474 People V. Head 477 People V. Heaton 464 People V. Heffernan 564 People V. Hills 465 People V. Humphreys 560 People V. Hurst 55 People V. Ives 486 People v. Jacobs 185, 187 People V. Jameson 487 People V. Judge (Mich.) 73, 480 People V. Kling '. .560, 562 People V. Klokke 472 People V. Koeber 30 People V. Lawton 312 People V. Leland 2 People V. Loucks 477 People V. Mahoney 160 People V. ^lariue Court (N. Y.) 505 People V. Martin 476, 563 People V. Mayer 550 People V. 3Icl'ausland 4(i9 People V. McLeod 335, 564 People V. ■Mead 490 People V. Mercein 563 People V. :Merrill 319 People V. iliner 604 People V. Mitchell ;j57 People V. Moore 469, 487 People V. Murray 312 People V. Xevin.s 179 People V. Xew York 490 People V. Otis 585 Page People V. Otsego oo 591 People V. Pacheco 501 People V. Phelps 553 People V. Pillow 562 People V. Kathbun 77, 328, 332 People V. Reilley 553 People V. Richardson 468, 557 People V. Robinson 29 People V. Railroad (N. Y.) 121 People V. Railroad (HI.) 458, 462 People V. iScurgham 497 People V. Secretary of State (HI.) 485 People V. Seymour 5b6 People V. Shearer 491 People V. Skinner 399 People V. Smith 414 People V. Solomon 476 People V. Spalding 188 People V. Stanley 308 People V. Sturtevant 184, 185 People V. Supervisors (N. Y.).. 477, 482 People V. Supervisors (Cal.).482, 505 People V. Susquehanna Railroad 467 People V. Sweetman 449 People V. Taylor 500 People V. Trustees (111.) 472 People V. Tyler 276, 325 People V. Vermilvea 120 People V. Watts.' 469 People V. Webb 121 People V. Weber 476 People V. AVeston 487 People V. Whitcomb 464 People V. Wiaut 477 People V. Wilcox 560 People V. Wilson 107, 198 People V. Woodbury 467 People V. Wright .392 People V. Yates (Governor). 484, 501 People's Steam-ship Co.'s Case. 34>^ Peoria v. Kidder 232 Perkins v. Corbin 55 Perkins v. Perkins 289 Perkins v. Pick 102 Perrin v. United States 371 Perry v. Buss 601 Perrv v. Dover 607 Perry v. Milligan *446 Perrv v. Periy 623 Perry v. Weyman 396 Peter v. Schlosser. .' 96, 298 Peterson v. Grover 236 Peterson v. St. Clair 533 Petitt V. Black. . .• 598 Pettingill v. Railroad 542 Peyton v. Robertson 501 Phelps V. Harris 224: Phillips V. Welch 48, 187. 55S Piatt V. Eads 213 TABLE OF CASES. XLlll Page Pickade v. Wade 98 Pierce's Case 183, 550 Pierce's (Louia's) Case 558 Pierson v. Finney 120 Piirgott V. Ramev 299 Pilgrim v. Miller"^ *393 Pitcher's Case 366 Pitt V. Davidson 1 ^9 Piatt V. Archer 352 Piatt V. Briglit 422 Piatt V. Harrison 5G4 Piatt V. Longworth, Execntor. . 225 Piatt V. Stewart 616 Plumbly V. Commonwealth .... 308 Plumer v. Marathon Co 593 Plummer v. AYebb 222 Polk Co. V. Hierb 75 Pollavd's Lessee v. Hagan 207 Poltuer V. Russell 188 Pomeroy v. Aiusworth 2i'4r Poole's Case -:^'t:»< Porter v. Jones 243 Porter v. Spencer 226 Portland Co. v. United States. . 364 Portwood V. Montgomery Co. . . 475 Portwood V. Supervisors 583 Potter V. Stevens 530 Powell V. Boon 21 Powell V. Brandon 20^i Powell V. Matthews 521 Powers V. Gross *95 Pratt's Case 345 Prater v. Robinson 232 Pray v. Herber 297 Prentiss v. Danaher 546 Prentiss v. Parks 28 Prescott v. Gouser 49s Preston v. Morrow *427 Preston v. Preston 606 Price v. Byne 424 Price v. Crone 614 Price V. Fc'rry Co *416 Price V. Kramer 5!i3 Prigg V. Pennsylvania *15:2 Prim V. Kabotsau 241) Probst V. Scott ■'I'Mj Propeller Commerce 25(; Propeller Swan 256 Prospect (The) 26i) Prosscr v. Secor 5s2 Prout v. Grout 532 Provine's Case 371 Pruitt v. Armstrong 532 l^ryor's Case 185 Pu'uet Sound Agricultural Co. V. Pierce Co. ." *126 I'uiih's Ca.se .371 Piigli V. United States 362 Pulaski Co. V. Stewart 21 Putnam v. New Albany 154 Pag& Quimby v. Hart 3--9 Quinn v. Van Pelt *121, *123 Quinney v. Stockbridge 592 Quman v. Allport 77 Ragan v. Harrell 388 Railroad. £x parte (Ala.) 487 Railroad, Ex parte (N. Y.C.)*414^ 423 Railroad, Ex parte (Lockport, etc.) 415 Railroad V. Bowler's Heirs 625 Railroad v. Campbell 55 Railroad v Clark 413 Railroad v. Cleins 601 Railroad v. Cobb *54 Railroad v. Commissioners(Kan.)490 Railroad v. Dayton 423 Railroad v. Elizabethtown 599 Railroad v. Elliott 99 Railroad v. Evansville 44 Railroad v. Express Co. (111.). . . 531 Railroad v. Fort Howard 590 Railroad v. Gas Co. (IS". Y.) . . . . *423 Railroad v. Gordon 224, 422 Railroad v. Horton 603 Railroad v. Hughes 425 Railroad v.' Judge (Ky.) 187 Railroad v. Killenberg 531 Railroad v. Lake (Town of) *418 Railroad v. Lawrenceburg 494 Railroad v. Litton 99 Railroad v. Manufacturing Co. (N.J.) 231 Railroad v. Mayor (N. Y.) 249 Railroad v. McQueen 581 Railroad v. McShane 599 Railroad v. Meader 413 Railroad v. Middlesex Co 409 Railroad v. Mitchell *119 Railroad v. Napa Co 479 Railroad v. Nolan 5S1 Railroad v. Oaks 109 Railroad v. Paine 531 Railroad v. Peacock 204 Railroad v. People 5^5 Pvailroad v. People (111.) 415 Railroad v. Peoples 531 Uailroad v. Plymouth 409 Railroad v. Pui'dy 395 Rai Iroad v. Ragland 536 Railroad V. Randolph 486 Railroad v. Revnolds 534 Railroad v. Railroad (Me.) 181 Railroad v. Railroad (111.). . .422,423 Railroad v. Railroad (Mass.) . . . 422 Railroad v. Railroad (Penn.). . .*422 Railroad v. Railroad (Ft. Clark) 423 Railroad v. Railroad (N. H.) . . . 24!> Railroad v. Russell 59:.5 Railroad v. Stockton (Cilv).421, 47.> XLIV TABLE OF CASES. Page K^iilroad v. Swavne's Adniinis- Irator " 2!'l Hiiilroiul V. Tclcoraph Co. (Ala.) 421 liailniail v. 'Plioinas 425 Uailroail v. 'Pow-boat 275 Uailroad v. 'I'urnor *415 Ivailroad v Tyson 542 Uailroad v. Van Drelle 414 Kail road v. Webster Co 606 Kake v. Steam-boat Owners 259 Kaiusden's C;asc 449 Kaniscy v. Carhart 463 KamscA' v. Worden 196 Kand v. (commonwealth 308 Kand V. Kand 136 K;uKiall V. Brigham 176 Kandcl v. Canal Co 64 Kandle v. Sutton 3s8 Kaudolph Co. v. Kails 48 Kansom v. Mayo 266 Kapud V. Gieen 46 Kalhburne v. Acker 72 Eausch V. Moore 526 Kay V. Austin *445 Kea V. Havden 45 Kead v. Brown 300 Keed v. Pratt 76 Keeves v. Davis 400 Keifsnyder v. Lee 530 Keinders v. Koppelmann 617 Remington v. County Court 434 Kemington v. Express Co 517 Kemington v. Foss 227 Kensselear Glass Factory v. Reid 208 Keppert v. Robinson 266, 272 Rex V. City of London *46s Rex V. Croke *155 Kex V . Saunders *464 Reynolds v. McKenzie 225 Reynolds v. Steam-boat 213 Reynolds v. Zink 130 Ivhddes' Case LSI Rhodes v. Cushman 581 Rhorer v. National Bank *524 Rice V. Hale 509 Rice V. Nickerson 122 Rice V. Parkman 3 Rice V. Walker 474 Richards v. People 184 Richards v. Wapello Co 605 Richardson v. Brooks 224 Richardson v. Lacey 533 Richmond V Dayton ISO Robb V. McDonald 189 Robbins v. State 329 Roberson v. State *106 Kol)crt Morris (The) 257 Roberts' Case 503 Roberts v. Newbold *42S Rol)erts v. People 313 Page Roberts v. Stalfield 273 Robertson v. Bullion 142 Robertson v. Clark 32 Robertson v. Robertson 613 Robinson v. Campbell 218 Robinson v. Case 552 Robinson v. Stanley 285 Robinson v. West 50 Rochambeau (The) 271 Rochester Water Commission- ers' Case 423 Rochler v. Mechanics' Aid So- ciety , 496 Rodman v. Musselman 532 Roderigas v. Savings, etc 288 Roderiguez's Case 5S7 Rogers^v. Dill , 610 Rogers V Green bush 605 Rogers v. Moultrie 400 Rogers v. Perdue 67 Roiling Mills Co. v. Robinson . . 131 Rood v. Mitchell Co 535 Rose V. Himely 13, 14, 43 Rose V. Railroad 42 Roseberry v. Hufl: 593 Rosenblat's Case 338 Ross' Case 308 Ross V. Commissioners 585 Ross V. Ross 225 Ross V. Saulsbury 115 Rothschild's Case 366 Rotsler v. Rotsler 526 Rowland v. Thompson 623 Royce v. Goodwin 159 Rozier v. GrilHlh 615 Rozier v. Johnson 615 Rubl)er Co. v. Good3'ear 288 Rumsey v. Leek 442 Runyan v. Morgan 523 Rupp V. Swineford *120, 125 Russell v. Lane 430 Russell V. New York 412 Russell V. Russell 184, 610 Russell V. AVilson 521 Rust V. Frothingham 76 Rust V. Vanvacter 5(!1 Rutherford v. Holmes 17it Ryan v. Bindley 102 Ryan v. Gallatin Co 587 Sackett v. Sackett 216 Sacobi's Case 34s Sage v. Heller 527 Sailly V. Button 125 Sale v. Court of Probate 290 Sale V. Lawson 136 Salmon v. Hanover 605 Salon V. State 55 Salscheider v. Ft. Howard 597 Salter v. His Creditors 68 TABLE OF CASES. XLV Page Salter v. Salter 29cS Salter v. Sample *388 Sam's Case 553 Samuel v. Wiley 511 Saiil)orn v. Beldon 415 Sanl)orn v. Sanborn 58 Sanbourne v. Smith ll(i Sanders' Appeal 236 Sanders v. Simmons 602 San Francisco v. Brader 525 Sapp V. Administrator 530 Saragossa (Tlie) 269 Sarah Jane (The) 267 Sarah (The) 275 Sasscari v. Hammond 504 Satlerlee v. De Cormeau 187 Savacoal v. Boiiuhton 603 Savage Manufacturing Co. v. Owings 403 Savings Association v. Lightner 603 S-nv3'er v. Bryan 128 Sawyer v. Sleam-boat Co 216 Scarborough v,. Reynolds 435 Schaentgen v. Smith *124 Schenk's Case 553 Schleister v. Kaymond 535 Schlenker v. Tafiaferro 95 Sclileisinger v. United States. . . 364 Schoif V. Bloomlield 434 Schotield v. Perkerson 39 School Inspectors v. People. .31,4*^2 Schooner Tilton (The) 264 Schooner Tribune (The) 267 Schoonmaker v. Clearwater .... 162 Scliori V. Stephens 624 Schuhman v. Marley 204 Schwickerath v. Cooksey 243 Scofield v. Parsons 98 Scott V. .Tones *17, *20 Scott V. Muore gi5 Scroepel v. Taylor 393 Scully V. Lowenstein 14 Seaman v. Duryea 283 Searle v. Galbr'aith 46 Searsburg Turnpike Co. v. Cut- ler 395 Seaver v. Robinson 73 Sebring v. Whedon 400 Secomb's Case 176 Secretary v. Mc(Tanah:tn . . . .497, 499 Sedgwick v. Sh(!tlieid 346 Seekins v. Goodale 601 Seeley v. Pel ton 425 Seeley v. Peters 210, 211, 212 Seigel V. Outagamie Co. ... 598 Selden v. Vermilla 615 Seralev's Case 553 Semple v. Anderson ] 2, 76 Senichka v. Lone 585 Sever v. Russell 298 Page Seymour v. Ely 480 Shallenberger's Appeal 284 Shannon v.Frost 145 Sharpe v. Administrator 2 Sharpes Ritie Co. v. Rowan. ... 81 Shaltuck V. State 181, 187 Shaw V. Bank 74 Shaw V. Dennis 602 Shaw V. Nochtony *562 Shaw V. Paine . .'. 290 Shawls (194) 274 Shaw's Case 552 Shawson's Case 371 Shea & Boyle's Case 343 Shean v. Cunningham 124 Shearer v. Winston 612, 614 Sheedy v. Bank 524 Sheldon v. Newton 42 Sheldon v. Risedorph 132 Slielp V. Morrison 190 Shepard v. Nabors 20* Shepard v. Ogden 45 Shepard v. Taylor 260 Shepard v. Watsons 443 Sherwood v. Douthit 94 Shield V. Dotard 525 Shinborne v. County 583 Shore v. Commissioner 403 Shoemaker v. Brown 285 Shoemaker v. Grant County. . . . 606 Shrewslmry v. Miller .' 32 Shroyer v. Bash 446 Sibbald V. United States 13 Sibley v. Howai-d 400 Sibley v. Williams 213 Sickles V. Borden 188 Simon v. He'Mcigh 165 Simmons v. Brainard 103 Simmons v. C'ommissioner 333 Simmons v. De Bare 23 Simmons v. Guyon .^)3.-, Simpson v. Call 122 Simpson v. Hart 230 Singleton v. 3hidi.son 94 Sinton v. Steam-boat 265 Siren (The) 281 Slack v. Norwich 606 Slaughter v. Gleason 232 Slawson's Case 371 Sleeper V. Bullen 602 Sloane v. Lindsay *577 Slocum v. Steam, etc., Co 28 Sloop Merchant (The) 260 Smethurst's Case 184 Smith V. Allen 233 Smith V. Auditor 593 Smith V. Biakeman 168 Smitji V. Bo.ssard 432 Smitii V. Brooke 546 Smith V. Buchannon 547 XLVl TABLE OF CASES. Page Smitli V. Bull *111 Smith V. ('ollins 527 Smitli V. Craig 294 Sniilh V. Denman 106 Smith V. Doak 150 Smith V. Eiduu 45 Smith V. Eng-le .■i2 Smith V. Frisl)ic IHS Smitli V. Heimer 40o Smith V. Honey 103 Smith V. Jones 117 Smith V. Klrkpatriclc *+24 Smith V. ilcLenden .•>57 Smith V. Millett 530, 535 Smit h V. Moore 500 Smith V. Prvor 123 Smith V. Kaih-oad 414, 425, 4-s Smith V. Keno 185 Smith V. School District *418 Smith V. Sharp 124 Smith V. Sweeny 442 Smitli V. Vandeihurc: 133 Smith V. Van Xorstrand 4' 4 Smith V. Virgin 441 Smith V. Wells 72 Smithee v. jNIoseley 474 Smith's Case (Mormon Prophet) 28, 337, 345, 556 Snodgrass v. Clark 294 Snyder v. Van Ingen 179 Snyder's Appeal 284 Snowman v. Harford 189 Soloman v. Reese 94, 95 Southard v. Steele 436 Spafford v. Richardson 67 Spalding v. Preston 312 Spalding v. Simms 518 Spauldiug V. Record 27 Spear v. Bicknell 390 Speer v. Davis 559 Speer v. Spear 617 Spencer Creek Water Co. v. Val- lejo 54 Spencer v. School District 531 Spencer V. Wheaton 589 SpeiTy V. Reynolds 106, *394 Spicer's Case 369 Spight V. Waldron 614 Spradler's Case 564 Sprague v. Navigation Co 534 Spuatt V. Spratt 447, 453 Spriggs V. Slate 63 Springkook Road Case 127 Springer's Appeal 300 Squair v. Shea 534 Srassheim v. Jarman 586 Sratel v. Maxwell 241 Stackle v. Sil>ljie 591 Staggers v. Washington 525 Stalev V. Columbus 587 Page Stamps v. Xewtou 44 Stanley v. Barker 62 Stanley v. Sutherland 522 Stanton v. Crosby 106 Starbuck (The) 272 Stark V. Jenkins *126 Starnes v. Allen 526 Starnes Co. v. Smith 5j^5 State v. Anthorne 407 State v. Babcock 472 State V. Baldwin 562 State V. Bane 1 64 State V. Banks 560 State V. Batchelder 396 State V. Becht 136, 185 State V. Bell 6s State V. Bennett 332 State V. Berrv 401 State V. Bertheal 21s State V. Bilansky 214 State v. Boal . . .' 462, 463 State V. Board (Ind. ) 477 State V. Board (La. ) 480 State V. Board (Ohio) 474 State V. Bonue\- 47 State V. Bowen 461 State V. Brauu 502 State V. Bridge Co 149, 418 State V. Brown 507 State V. Buchanan 219 State V. Butler 122 State V. Byers 5s4 State V. Cahaba 462 State V. Calhoun 5S3 State V. Calvin 212 State V. Campbell 392 State V. Carson 172 State V. Carter 319 State V. Castle 410, 411 State V. Chamber of Commerce. *142 State V. Chapin 329 State V. Chargois 148, 166 State V. Charfeston 500 State v. Chase 483 Slate V. Cheeseman ^ 561 Stale V. Church 100 State V. Clark 469 State V. Clark Co. Court 475, 503 State V. Cohen 35 State V. Commissioner (Ala.) . . 475 State V. Conuell 307 State V. Copp 397 State V. Central Pacific R. Co. . 58.") State V. Cummings 213 State V. Curtis 467 State V. Danforth 219, 220 State V. Davis 4sO State V. Des Londe 35 State V. De Vargas =--^5 State V. Dohring 66 TABLE OF CASES. XLVU Page .State V. Dotv 1H(J State V. Doyle 34, 473, 475 State V. Dubuclet 485 Slate V. Duikee 470 State V. Elmore 4S2 State V. Ely 30 State V. Fagiu 553 State V. Fenderson 550 State V. Ferris 467 StUte V. Fire Commissioner .... 474 State V. Ford Co 470 State V. Fosdick 51 State V. Fortinherry 52U State V. Frank's Administrator. 243 State V. Foundry, etc., 495 State V. Gall...' 498 State V. Gamble 492 State V. Gambo 527 State V. Gardner 313, 4t;4 State V. Gas Co 4(3s, 495 State V. Gatcheimer 30 State V. Gibbs 495 Slate V. Gleason 459 State V. Goodman *313 State V. Gracey 473 State V. Grady 321 State V. Hamilton Co 583 State V. Hays 36 State V. Herron 187, 478 State V. Hiljyer 218 State V. Hoehin^uer 453 State V. Hollenbeck 329 State V. Huffschmidt 307 State V. Intoxicating Liquors . . 164 State V. Insurance Co. (La.) .... 592 State V. Jackson 53 State V. Jefferson 169 State V. Jervey 602 State V. Johnson 415 State V. Jones 461 State V. Judge 36, 54, 121, 505 State V. Jumel 172, 474 State V. Killlmck Turnpike Co.. 415 State V. Knight 315 State V. Lupperle 457 State V. La Garde 497 State V. Lawrence 457, 486 State V. Lehre 465 State V. Lucky 398 State V. Lutz.' 602 State V. Lyons 464 State V. Marks 169 State V. ISIayor (N.J.) 499 Stale v: McAlister *3s7 State V. McCoy 120, 163 State V. McUiarmid 463 State V. McGeaghan *r24 State V. Merrihew *123 State V. Metzger 30 . State V. Minton 457 Page State V. Moore 321 Slate V. Morehead 540 State V. IVIorris 521, 526 State V. New Haven, etc., Co. . . 4'.t7 State V. Newton * 120 State V, Fainter *'6\'o State V. Parker 130, 4".7 State V. Penne}- 449 State V. Pill.jimiy (Mayor, etc.). 475 Slate V. Plainfiefd ' 413 State V. P.jlice Jury 475, 478 State V. Poultner 5>-7 State V. Railroad Co. (La.) 495 State V. Railroad Co. (Alinn.) . . 479 State V. Railroad Co. (Wis.) 468 State V. Railroad Co. (Vt.). .4(10, 461 State V. Richmond 406 Slate V. Roberts 127 Slate V. Robinson 117 State V. Rowan 119 State V. Runnals 106 State V. Sanderson 598 State V. Sawyer 132 State V. Schlemer 556 State V. School District (Neb.) . 478 State V. Scott 41 State V. Shields 467 State V. Shumpert 52 State V. Smith 55, 99, 472 Stale V. SpurLeck 118 State V. Stewart 307 State V. Supervisors (Wis.) 49.3 State V. Taylor 4<^6 Stale V. Thomas 168 State V. Thompson 550 State V. Thurmond 180 State V. Tierney 4(;'i) State V. Tolan 469 State V. Tomlinson 457 State V. Tounsley 462, 463 State V. Trent 498 State V. Turnpike Co. (Ohio). . . 463 State V. Vail 461, 463, 469 State V. Wain . . . .' 323 State V. Ward *426 Slate V. Warren 300 State V. Webster 44s State V. Whittlemore 448 State V. W illiams 333 State V. Wilson 481 State V. Wyckofl" 326 State Bank v. Woland 135 State Railroad Tax Cases 589 Steady. Lolb *439 Sleam-boat Gen. Buell 271 Sleam-boat v. Long 259 Steamer Petrel v. Dumont 262 Stearley's Appeal 44 Slearn'v. Wright 161 Stearns v. Miller 600 XI.Vlll TABLE OF CASES. Page yicliliins V. Kiillis Tiy? Sti'i'lc V. 'I'liatchcr ^73 Htc'cn V. SU;on 283 IStfplicns V. Helmnn *522 Stephens v. People 469 Stephenson Co. v. JManny WXi Stevens' Case 453 Stevens v. DillnKin jVJ') Stevens V. Kirk 546 Stewart v. .Mix 161 Stewart v. Pahiier 585 Stewart v. Waters 156 St. Joseph Co. V. Hickman 651 Stiles V. Ueeman 294 Stite V. Corporation • • • • . 290 Stitson V. Commissioners 132 Stockbridge Iron Co. v. Iron Co. 246 Stockton Railroad Co. v. Stock- ton 475 Stokely v. Robinson 433 St. Luke's Cliurcli v. Stack 498 Stone V. Pratt 237, 247 Stoner V. Kins; 239 Stor,v V. People *191 Stoufa V. Xipple 521 Stoughton V. JVIott 45 St. Peter v. Dennison 421 Slramberg v. Heckman *108 Strauford v. Green *436 Strong v. Beronjon 429 Strout V. Berry .' .390 Stuart V. Ijudwick 242 Stuart V. Maple 592 Stuart V. Supervisors 227 Studinger v. Newark 55 Stupp's Case 556 Sturges V. Board of Tiadc *142 Sturoe's Case 192 Sturtevant v. Tallman 299 Sudbury Parish v. Stearns 477 Sullivan's Case 566 Sullivan v. Sullivan 614, 616 Sullivan v. Vail 99 Supervisors v. Arrighi 55 Supervisors v. Klien 583 Supervisors v.Wingtield(Judge)*505 Sumner v. Parker 404 Surocco V. Geary 411 Sutter V. San Francisco 620 Swain v. McRue 478 Swan V. Gra}' 500 Swertzel v. Rogers 82 Swearinger v. Gulick 27 Sweeny's Case 369 Sweet V. Brown 543 Sweet V. Halbert 505 Sweet V. Reed 517, 534 Swift V. Larrabee 224, 227 Swift V. Poughkeepsie 607 Symmes v. Strong 97 Page- Tabler v. Wiseman . . 619 Tali)Ot V. Hudson 417, 418, 421 Talbut V. Hopper 127 Talpey v. Doane 527 Tapley v. Martin 65, 67 Tappan v. Bank 589 Tarble's Case 550 Tarbox v. Kennan 94 Taslev V. Tasiey 237 Tatem's Ca.se *550 Taylor v. Biddle *291 Taylor v. Board of Health 604 Taylor v. Burscup 292 Taylor v. City 151 Taylor v. Carryl 258, *350 Taylor v. Coryell 436 Taylor v. Gardiner *119 Taylor v. Gilpin 625 Taylor v. Kehler 534 TaVlor V. Koshetz 38S Taylor v. Lucas *124 Taylor v. ^Murphy *579 Taylor v. Elvers 521 Taylor v. Phillips *609 Taylor v. Royal Saxon 264 Taylor v. Railroad 74 Tajior v. Smith 46 Taylor V. State 63 Taylor v. Thompson 590 Teague v. Supervisors 409 Tebbets v. Tilton 286 Telegraph Co. v. Bank 53 Temple v. Bradley 102 Territory v. Lockwood 461 Terrett v. Taylor 215 Teriy v. Sissou 536 Texas v. White *l^ Thayer v . Montgomery 391 Thomas v. Alford 73 Thomas v. Bartow 246 Thomas v. Bibb 54 Thomas v. Mahone 84 Thomas v. Mead 505 Thomason v. Craighead 622 Thompson's Case *344, 514, 564 Thompson »& McClellan's Case . 343 Thompson v. Brown(Garnishee) 536 Thompson v. Cox 31 Thompson v. Smith 535 Thorington v. Gould *522 Thormond v. Clark 245 Thornton's Case 486 Thornton v. Leavitt 75 Thornton v. Thornton 617 Thorpe v. Foster *116 Thorsen v. Schooner 266 Thrasher v. Buckingham 540 Thweatt v. Kiddoo 185 Tiffany v. J^ord 106 Tignor v. Bradley 526 TABLE OF CASES. XLIX Page Tilloii's Case 369 'IMloii V. Palmer 614 'I'iiidal V. Drake 610,616 Tiiuleil V. Meeker 65 Tiniiey v. Stebhins 611 Tippacli V. Briant 48 Tipton V. Chambers 103 Titus V. Scantling 204 Todd V. Caldwell 29S Todd V. United States oii'.i Tome's Apjieal 29i» Toomer v. Randolph 533 Town V. Clark 207 Treadwell v. Lawler 522 Trego V. Lewis 95 Tremain v. Richardson 138 Tremper v. Brooks 531 Trice's Case 474 Trotter v. Trotter i;i2 Trout V. Drawhoru 395 Trout V. Emmons 435 Truesdall's Appeal 591 Tucker v. Bean ()25 Turner v. Althans 603 Turner v. Beachara 262 Turner v. Commonwealth Isl Turner v. Franklin 603 Turnpike Co. v. Cutler 395 Turnpike Co. v. Wilson 123 Tuctle V. People 66 Twohig & Fitzgerald's Case 550 Tyler v. Beecher 416 Tyler v. Bowlers 395 Tyler v. Hamasley ] 7it Tyler v. People . '. 320 Tyrrell v. .Jones 394 L'mbarger v. Chaboya 58 Uiiderhill v. Van Cortlandt. . . . 444 Underwood v. Robinson 601 Underwood v. West 241 Union Church v. Sanders 496 United States v. Ames 443 United States v. Anthony *3]3 United States v. Arredondo.2, 29, 39 United States v. Barney 304 United Stales v. Bevan 275 United Slates v. Burns 365 United States v. Caton 182 United States v. Coolidge. ..221, 222 United Slates v. Crossley 610 United Statts v. Davis. "77, 276. 326 United States v. Emerson 185 United States v. Fort Scott 5^4 Unit(;d States v. Guthrie 34 United States v. Ifotliiian 503 United Stales v. Hudson 221 United Slates v. Justus 367 United States v. Kaufman *361 United States v. Kirkpatrick. . .*360 Page United States v. Lee Co 491 United States v. Macon Co 584 United States v. McGill 276 United States v. M^'Inphis 584 United States v. Murphy 577 United States v. Muscatine Co. . 4'.>1 United States v. O'Keith .'Kiii United States v. Pacific R. Co.. 5s7 United States v. Palmer 277 United States v. Pirates 27ii. 277 United States v. Pugh *371 United States v. Railroad(3)cars 314 United States v. Robinson 276 United States v. Russell 371 United States v. Scott 577 United States v. Smith 277 United States v. State Bank. . .*361 United Slates v. Sterling (City). 491 United States v. Taintor *313 United States v. Wilson 314 United States v. Wiltberger ... 276 Unsier v. Trumpliour 392 Upton V. Railroad 65 Van Aerman's Case 551 Vanalla v. Anderson 131 Vance v. Geib .544 Vance v. Little Rock 583 Van ell v. Church 46 Van Guisen v. Van Houten 95 Vannah v. Carney 440 Van Ness v. Packard 204, 212 Van Riper v. Berdan 613 Van Valkenlmrgh v. Evertson . 400 Varner v. Bevil 297 Vase V. Morton 81 Verac's Estate 300 Victor Scale Co. v. Shurtleff. . .*5H Villavas v. Walker 188 Virginia v. Rives 474 Vogel's Case. . *350 Voorhees v. Sessions 531 Vose V. Willard 582 Votan V. Reese 94 Vowless' Heirs v. Buckman . . . 610 Vfe(!land v. McClelland 297 Wade V. Lobdell 298 Wade V. Louton 94 Wade V. Powell 432 Wadhams v. Gay 225 Wadsworlh v. Walliker 526 Wagner v. Bisse'l 210 Wagner v. Hallock 393 Wait v. Mann 535 Waite V. Prmceton 603 AVaite v. Young 64 Wakefield v. Gandy 45 Walbridge v. Hall 32 Walden v. Dudley 603 TABLK OF CASES. Page Wales V. Willavd 404 Walker's Case 291, 553 Walker's Administrator v. Wal- ker 204 Walker v. St. Louis (i05 Walker v. Zorn 533 Walkleyv. Muscatine (City) .. . 4!tl \\ allaee v. Robinson 226 Wallaee v. Anderson 4(32 Wallace v. Castle 514 Wallaee v. Cox 92 Walsh V. Kav 120 Ward V. Flood 499 Ward V. Lathrop 109 Ward V. McKenzie 521 Ward V. R03' 75 Ward V. Thompson 262 Ware v. Gowen 534 Ware v. Pereival ()02 Waring v. Clark 254 AVarren v. Coal Co 226 Warren Manufacturing Co. v. [nsurance Co 73, 80 Warren v. Sullivan 535 Washington Park Case 421 Wassin v. Cone 74 Waters' Case 370 Waters v. Langdon 67 Waterloo v. Kailroad Co 423 AVaterman v. Root 116 Watkins v. Blatsehinski 536 \Vatkins v. Weaver ;!97 Watson's Case 2;'s AVatson v. Avery 146 Watson V. Fuller 184 Watson V. Nelson 179 Watson V. Keissig 135 Watson V. State 331 Watson V. Watson 602 Watson V. Williams 180 Watts V. Hariling 96 Wauzer v. Bright 73 AVay's Case 386 Way V. W^ay 44 Weaver v. Carpenter 70 Weaver v. Davis 537 Webb V. AY right 114 Weber v. llenliard 589 Weber v. San Francisco 590 AYebster v. Gage 530 AYebster v. Harwinlon 596 AV^eed v. Ellis 428 AYeeden v. Town Council, etc.. 10 AYeeks v. Smith 184 AA'eizel's Su:;cession 117 AVelch V. Battau 527 AA^'elch V. Byrnes 4<9 VYelch V. St. Genevieve 492 Wells V. Commonwealth 189 AYcUs V. Mitchell 299 Page AVells V. People 514 Wesson v. Newton 440 AVest's Appeal 467 West V. Insurance Co 458 AYest V. State, use, etc 122 AYest V. AA^est *455 Westbrook v. AYicks 482 Westcott's Case 343 AYestou V. Dane 494 AYeston v. Stuart 442 Wevand v. AYellcr ;!97 AYiieut V. Railroad il44 AVheatlaud v. Levering 73 AA'heatou v. Peters 204 Wheelau^s Appeal 246 AY heeler v. Cobb , 5 15 AYheider v. Harrison l'J9 AYheeler v. Thompson 179 AYheeloek v. Lee H AYhisler v. Corami.ssioncrs 413 AYhlt(-()mb v. AA' hitconib 115 AYhites Estate 164 AYhite v. Bird 538 A\Tiite V. Conover 403 AYhite v. Fo.v 433 White V. Knapp 204 AYhite v. Reagan 159 AYhite v. Riggs 301 AYhite V. Railroad 235 AYhitraan v. Fisher *127, 225 AYhitman v. Pownal 388 AYliitney v. Bowen 388 AYhitney v. Sears ^02 AYliittaker v. Jonesville 595 W^hitehouse's Case 565 AYhittem v. State 181, 182 AYight v. Meredith 125 \Y ight v. Warner 32 AYighlman v. Carlisle 91 Wightraan v. Wallbaum 21il AYilco.x v. Sinuletarv 436 Wilder v. Shea ' 531 AVlldman v. Rider 45 AYilhelms v. Noble 96 AYiJkius v. Marshall 514 Willamette Co. v. Gordon 289 AY i Hard's Appeal 290 Willard v. Collamer 95 AYiliiam Bagalev (The) *365 AYilliam D.Rice (The) 265 Williams' Ca.se 559 Williams v. Benedict *3."0 Williams v. Boardman 53ii AYilliams v. Dwindle 184 AYiliiams v. Holmes 300 Williams v. Jones 538 AYilliams v. Kenney 541 Williams v. Reinuy 599 Williams v. Saunders 500 AYilliams v. AYiltou 103 TABLE OF CASES. LI Page Williams v. Ynunc' ■)34 Willis V. Ehim...": 127 Williston V. Jiaihvav 7!1 Wills V. Whittcll. .." (J7 Wilson V. Burnt-v 5.!(j Wilson V. IlathaWay 411 W ilson V. Mayor 592 Wilson V. Territoij' 179, l^o Wilson V. Wilson 1(15 Wilson V. Yoiint;- 4.).') Wilson V. Zeiiiler lOiJ \\'in(iliam v. Coniniiss'oncrs . . . 4'l3 Windsor v .Mc'Vci^Ii 105 Winfl)iXMiiu'r v. Coldci- 14G Winn V. Alhcrl 1411 Winn V. Frelc 48 Winser v. (iiiggs 4;U Winsten's Cas • :)r)2, .i(!4 Winston v. Ewinu' ;i:j4 Winterfield v. Kailroad .136 WintertiL'ld v. Strauss 380 Winters v. Heirs 477 NVinters v. Hehn 13") Wise V. Witliers 391 Wiswall V. Sampson *3r)U Witter V. Lyon Is9 •Wood V. Fithian 39") Wood V. M .rvine 131 Wood V. Matthews 2<9 Wood V. Pi-eseott 390 Wood V. Kailroad 443 Wood V. Stone 293 Woodbridge v. Morse 530 Woodbury v. Maguire 4(i Woods V. Syinmes 511 Woods V. Van Uankin 121 Woodword v. Ellsworth 593 Page Woodward v. Lincoln 293 Wool folk V. Ingram 527 W^orsham v. Richards ',• Worthen v. Badgett 594, 595 Wortm:in v. Griffith 260 Woven Tape Skirt Co.'s Case. . 18!^ W right V. Evans *432 Wright V. Hay ward 7(1 Wright V. People 458 Wiight V. Smitli 90 Wright's Adaiinistrator v. Wil- kinson 300 Wyatt V. Benson 427 Wyat t V. .ludge 48 VV^yatt's Adnimisti-ator v. Steele 287 Wyman v. Hoover 132 Yarliorough v. Leggett 431 Yates V. Attorney General 474 Yeatman v. 3Ialtison 424 Yoe V. ^NfeCord 131 Yore V. Steam-boat 137 Yoiile V. I'l-otheiton 397 Young V. ('amphell so Young V. Kinney *426 Young V. Xelson 521 Young V. Ship 2lJG Young V. United States *36() Youiigblood V. Sexton 59G, 599 Youngblood v. Youngblood 239 Younger v. Insurance Co 2(59 Yule V. Yule 510, 511 Zellncr v. United States 364 Zinuiun- v. Davis 534 Zobieskie v. Bander 123 Zorger v. Kapids 592 THE JURISDICTION OF COURTS. PART I. ELEMENTARY PRINCIPLES CHAPTEK I. JURISDICTION DEFINED. $ 1. Etymology of the word "Jurisdiction." 2. Limits of jurisdiction. 3. Uetinition by the United States supreme court. 4. Plaintiff 's right confers the jurisdiction. 5. Distinction between judicial and ministerial acts. 6. Judging the constitutionality of statutes — justices of the peace, etc. v^ 1. The word jurisdiction is derived, with hut a slight change of form and none of meaning, from the compound Latin word jurisdictlo, signifying a speaking of justice or of r.ght. It tlierefore consists, primarily, of judging causea according to the law, wherein rights are actually disputed; and is secondarily applied sometimes to the limits of territory within which the right to judge thus is exercised. § 2, Hence it is no part of the business of courts entrusted with the high prerogative of jurisdiction, that is, speaking justice, to take cognizance in any manner of mere questions (1)" 2 JURISDICTION DEFIXED. of law, wherein no rights are actually disputed, nor to extend the jurisdiction in even an actual case beyond the limits of the essential controversy concerning the rights involved. Even in the highest courts, therefore, obiter dicta are, of ne- cessity, extra-jurisdictional, and hence are not to be regarded as a declaration of the law. And in order to give any court jurisdiction of the subject-matter, so as to enable it to malis orders, or issue process even, a suit must be instituted therein. (rt) Although in an actual suit the parties may agree upon the facts, and have the court declare the law arising on those facts, this agreement must be strictly confined to matters involved in the cause, and not extended to disconnected cir- cumstances. (ft) . And it is provided, in some states, that an affidavit must be made as to the reality of the controversy involving the facts agreed upon.(c) And it has been held that where a cause even has the appearance of being ficti- tious, it will be dismissed, unless an affidavit of its reality is filed. (J) Nor will a court entertain a suit merely for the purpose of declaring that one who claims to have a right which may arise thereafter, has no such right, (c) § 3. And accordingly the suprjme court of the United States has succinctly defined jurisdiction thus: "The power to hear and determine a cause is jurisdiction; it is 'coram judice,' whenever a case is presented which brings this power into action; if the petitioner states such a case in his petition that on a demurrer the court would render judgment in his favor, it is an undoubted case of jurisdiction : whether on an answer denying and ijutting in issue the allegations of the 23etition, the j^etitioner makes out his case," etc.(/) § 4.- It is the character of the suit on the part of a plain- tiff which gives the right of jurisdiction to a court, so far as the subject-matter is concerned ; and not of the defence thereto. Where a statute grants a right, jurisdiction attaches, even if {a)Ex parte Cohen, 6 Cal. 318. (^').Tar'kson v. Lumlcv, 21 En'j;. L. (JjBlair v. iState Bank, 8 Mo. 31.3. & E. 13. (?)Sharpe «. Adm'r, 27Ind. 507. (/) U. 13. v. Arredoudo, 6 Pet. {d)'Peop}e ex rd. «. Leland, 40 111. 700. 118. JurasDiGTiox defined. 3 another statute may make a certain circumstance a bar to that right, ((/) if i)leacled by the del'endant. § 5. Jurisdictional or judicial acts are to be carefully dis- tinguished from ministerial acts, for not all acts performed by a judicial ol'ticer are therefore judicial, since such an officer may be enjoined by law to act ministerially also, as for example in appointing an officer; and otherwise empou^ered by law to act ministerially, as in acknowledging a deed, or solemnizing a marriage. (Z^) And it has been even held that although a power is del- gated to courts, it is not therefore of necessity judicial; and that a legislature may authorize directly in a particular case a sale of lands belonging to minors, so as to transmute real estate into j^ersonal property. (i) But I think the soundness of this doctrine may well be called in question, at least so far as this application of it is concerned. The North Carjlina court say: "We are of opinion that a power to appoint ap- praisers to assess the benefits to lands affected by a canal is not exclusively judicial. "(_/) But I cannot understand that anything inseparable can be partly judicial and partly other- wise. If a single act is judicial at all, it must be excluslvebj so, I think. § (!. Although statute law is often itself a source of juris- diction, and a guide and limitation thereto, yet it is manifest it may pass under the exercise of jurisdiction as well as per- sons, and things disputed. This is the case when the ques- tion of the constitutionality of a law arises in a suit — a ques- tion, however, which can never arise where there is no written constitution, and the legislature is omnii^otent, like the Eng- lish parliament. And so in a leading case, in 1803, the supreme court of the United States say: "Certainly all those who have framed written constitutions contemplate them as (,7) Boone «. Poiiulextcr, 12 S. & M. moved by the defendant in the mnn- (Miss.) 647. ner prescribed by statute. Mabiey Nor can a court deprive a plain- «. Judge, 41 Mich. 37. tifl' of his right of election between (7i)People t\ Bush, 40 Cal. 34(!. difVercnt courts in whi-ch he may {i)\\\ce v. Parkmin, 16 Mass. 328. bring his action, or refuse to retain (j)Flat Swamp, etc., Canal Co. v. jurisdiction, unless the cause is re- McAlLster, 74 N. C. 163. 4 JURISDICTION DEFINED. forming the fandamental and paramount law of tlie nation, and, consequently, the theory of every such government must be that an act of the legislature repugnant to the constitution is void. This theory is esssn'ially attached to a written con- stitution, and is, consequently, to be considered by this court as one of the fundamental principles of our society. If an act of the legislature repugnant to the constitution is void, does i:, notwithstanding its invalidity, bind the courts and oblige them to give it effect ; or in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow, in fact, what was established in theory, and would seem at first view an absurdity too gross to be insisted on. It shall, however, receive a more attentive con- sideration. "It is emphatically the province and duty of the judicial department to say what the lavv is. Those who apply the rule to particular cases must of necessity expound and inter- pret that rule. If two laws conflict with each other the courts must decide on the operation of each. So if a law be in op- position to the constitution. If both the law and the consti- tution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, disre- garding the law, the court must determine w^iich of these conflicting rules governs the case. This is of the very essence of judicial duty. "If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the princijDle that the constitution is to be considered in court as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes to the constitu- tion, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the ]3riiieiples and theory of our government, is entirely void, is yet in practice completely' obligatory. It would declare that if the legislature should do JURIGDICTION DEFINED. 5 what is expressly forbidden, such acts, notwi hstanding the express prohibition, are in reality effectual. It would be giv- ing to the legislature a practical and real omnipotence with the same breath v/hieh professes to restrict its powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. "(/j) It seems to be a necessary conclusion from tlio foregoing remarks, the power discussed being declared to be "of the very essence of judicial duty," that all courts of a higher or lower degree must possess authority to determine the ques- tion of constitutionality. And I see no reason why even a justice of the peace may not exercise the authority as belong- ing to the "essence" of his "judicial duty." And yet it has been argued that "all officers of the law, whether judicial or ministerial, or inferior or superior, are bound to know whether a law exists or not. But when a law does exist, inf^'rior courts and ministerial officers are not bound to know whether it is constitutional or not. A contrar}' doctrine would require the sheriff — a mere ministerial officer — to de- cide and pass upon the constitutionality of a law passed by the wisdom of the legislature. And yet if he is to be made liable in damages if he acts under an unconstitutional law he must necessarily have the right to pass upon its consti- tut onalit}' in order to avoid damages. Even the highest tribunals of the country for a long time hesitated to decide a law unconstitutioiuil. Dift'orent judges decided this question indifferent ways, the weight of authority, however, being in favor of the right of the court to pronounce a law unconsti- tutional, and, therefore, not binding. But no court ever sup- posed for a moment that a constable or sheriff or other min- isterial officer possessed such right." But is it not a manifest non seqiiltur that an inferior court can not determine this question, because ministerial officers can not? However, the argument goes on to say: "The most difficult questions presented to our courts for determination are fre- (A'jMarbury v. Mudi.son, 1 Cranch, 177. 6 JUPilSDICTION DEFINED. quently constitutional questions, and it not unfrequently hap- pens that the ahlest judges differ in opinion : one holding that a law is, and the other, equally learned, holding that it is not, constitutional. How absurd it would be to require an inferior court, having no pretensions to equal learning, or a sheriff or constable, to j^ass on grave and difficult constitutional ques- tions. "(Z) But may we not suggest that learned judges often differ as much in construing a statute mereh^ ; that it is not necessarily any more difficult to interpret a constitutional provision than a statutory enactment; that inferior courts must of necessity interpret and construe statutes, and deter- mine their meaning, and that if they can judically determine the meaning of statutes, they may also determine the mean- ing of a constitutional provision, and then may compare them together, and declare their agreement or disagreement ? And if this be of the very essence of judicial duty, must not infe- rior courts exercise the power, when necessary, in the due dis- charge of that judicial duty? I tliinlc so. And it is not strange that the court was not convinced by the argument, but decided that a justice of the peace has a right, when neces- sary to the exercise of his judicial functions, to pass upon the constitutionality of a statute involved, provided, of course, that the court of last resort has not passed thereon. In pass- ing it may be remarked, as a matter of course, that a some- what similar duty is sometimes imposed on courts by the necessity of deciding between two conflicting statutes, or two repugnant provisions of the same statute. The rule is, to adopt such an interpretation as to give effect to both, if this is possible. If this cannot be done, then the court is to determine the legislative will from all the circumstances of the enactments. (^)31aybeny v. Kelley, 1 Kau. IIG. JURISDICTIONAL DISTINCTIONS. CHAPTEE II. JUEISDICTIONAL DISTINCTIONS. $ 7. Jurisdiction in personam and in rem. 8. Law and equit3\ 9. Civil actions and criminal, military and ecclesiastical. 10. Superior and inferior jurisdiction. 11. Concurrent and exclusive jurisdiction. 12. Original and appellate jurisdiction — direct and incidental jurisdic- tion. § 7. The leading distinction herein is that of jurisdiction in personam and in rem. Ordinarily these must concur in judicial proceedings, and the former alone is never maintain- able — not even in regard to criminal actions or the writ of habeas corpus.* The latter may exist alone, but not so as to result in a judgment that may be the foundation of an action subsequently in another state, («) or, I suppose, even in the same state. As to the general distinction, the supreme court of the United States say: "This is the line which denotes juris- diction and its exercise : in cases in personam, where there are adverse jjarties, the court must have power over the subject- matter and the parties, but on a proceeding to sell the real estate of an indebted intestate there are no adversary parties — the proceeding is in rem, the administrator represents the land; they are analogous to the proceedings in the admiralty, where the only question of jurisdiction is the power of the court over the thing, the subject-matter before them, without regard to the persons who may have an interest in it — all the world are parties. In the orphans' court, and all courts which have the power to sell the estates of intestates, their action operates on the estate, not on tlie heirs of the intestate; *As to that species of property person includes jurisdiction of the ■which follows the person, such as thing. Keyser v. liice, 47 Md. 204. choses in action, jurisdiction of the (a)McVicker v. Beedy, 31 Me. 314. 8 JURISDICTIONAL DISTIXCTIONS. a pureluiser claims not their title, but one paramount; the estate passes to him by operation of law; the sale is a pro- ceeding in rem, to which all claiming under the intestate are parties, which divests the title of the deceased ;"(^) and it is thus also ia uon-residcnt attachment suits. § 8. Another distinction is that of legal and equitable juris- diction — the former pertaining to rights conferred by law, unwritten or enacted; the latter to equitable rights sup- plementing the legal, and, in theory at least, correcting the inequalities of the latter, and supplying their deficiencies. These branches are so distinct that no subsequent action at law will lie on a decree in equity, as, for example, an action to recover money decreed to be paid.(c) § 9. A civil action is one relating to rights of person or property. This has three antWieses, at least in a degree, namely: (1) Criminal actions, relating to public offences; (2) military, usually relating merely to military affairs, although military courts may take cognizance of matters usuall}' cogni- zable in civil courts, as where martial law is declared, and thus civil courts superseded; and (3) ecclesiastical, relating to the power and authority of ecclesiastical courts over the rights of property as to members of the churches to which those courts pertain, and the common property held by the communities thereof. All these will be distinctively treated hereafter in the present work. § 10. Another distinction is, superior or inferior, and gen- eral or limited jurisdiction, and the rules concerning these are not only different in degree, but essentially so, as we shall see in the course of our investigation. § 11. Again, we have concurrent and exclusive jurisdiction; the former existing when some other court might have enter- tained the cause. Sometimes this is the case with courts of law and of equity, as in the matter of fraud. And sometimes this is exercised concurrently, in order that the court of equity may assist the court of law, as in a matter of discovery, although this is rapidly becoming superseded hy the statutes (A)Grignou\s Lessee «. Astor, 2 (cjHugh v. Higgs, 8 Wheat. 697. How. (U. 6.) 338. JURISDICTIONAL DISTINCTIONS. 9 allowing parties to testify in courts of law. Again, there is a mixed jurisdiction — the same court having legal and equitable powers. § 12. Also, there are original jurisdiction and appellate ju- risdiction — the latter consisting of the power to review the proceedings of courts exercising the former: and, finall}^ there is probate jurisdiction, relating to estates of decedents, guard- ianship, etc. All these will hereafter pass under special review, and arc, therefore, merely mentioned now for the sake of classification, needful to a clear and connected view of the whole subject. And we may properly add here that there is a direct jurisdic- tion, and, subsidiary to this, an incidental jurisdiction — the latter signifying simply that wherever a general power exists all authority requisite to the execution thereof exists also by nec- essary implication, as, for examjjle, in making partition, in- choate rights may be perfected in favor of legal representa- tives ;(fZ) or, in determining the results of an election, the court may decide all the facts necessary to a fair and legal election, (c) (rf)Jenkin=! v. Simm?, 45 Md. 533. (e)Worshain v. Uichards, 4(j Tex. 441. And so a court should decline to entertain jurisdiction if it is not in a condition to do full justice ; as, if its decree would leave a party still in peril of being subjected to an- other and perhaps adverse decree or judgment in a different jurisdic- tion. Harrison v. Pullman, 84 111. 21. In Louisiana it is held that if ditl'erent causc«! of action be brought in a probate court in a single action, some of which are within its juris- diction and others are not, the court may sever them, rejecting the out- side causes, and entertaining the legitimate causes of action. Suc- cession of Hoover v. York, 30 La. An. 752. The matter of incidental jurisdic- tion will be particularly considered hereafter. 10 LEGAL EFFECT OF ACTING WITHOUT JURISDICTION. CHAPTEE III. LEGAL EFFECT OF ACTING WITHOUT JURISDICTION. f 13; ]Sro opinion to be given without jurisdiction. 14. Wliat may be done without jurisdiction. 1;"). Legal effect of acting without jurisdiction explained. 1(3. Example. 17. Application to habeas corpus to courts martial and to the transcend- ing of the limits of jurisdiction. 18. Effect of subsequent investiture of jurisdiction. 19. .'itare decisis in regard to jurisdictional questions. 20. Foreign courts. Tliei-e are two general branches of this inquiry — the first relating to legally constituted courts, and the other to illegal tribunals. These will together occupy this and the following chapter. § 13. Where there is no jurisdiction, it does not belong to the proper functions of a court to give an opinion upon a matter submitted to them, for the guidance of parties or in- ferior tribunals, even where the parties consent to it. The whole business of a court is confined to giving decisions in cases properly before it. (a) § 14. However, although when a court has no jurisdiction it is, in general, irregular to make any order except that of dismissing the suit, the rule does not, of course, prohibit the court from setting aside orders improperly made before the want of jurisdiction was discovered, and restoring the status of affairs existent prior to the making of the imj)roper orders. As, for example, wliere, under writs of injunction and se- questration, a marshal took possession of a steamer and held it subject to the order of the court, and it afterwards ap- peared that the writs were wrongly issued, on which the court (a)Weedeu «. Town Council, etc., 9 R. 1. 131. LEGAL EFFECT OP ACTING WITHOUT JUHISDICTION. 11 set them aside, and ordered the steamer returned to the one from whose custody it was taken, the proceeding was ad- judged legitimate. (^) § 15. The legal effect of acting without jurisdiction is thus succinctly stated, in a leading cise, hy the supreme court of the United States: "Where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and, whether its decision be correct or otherwise, its judgment^ until reversed, is regarded as binding in every other court ; but if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal, in oj^position to them, ' They constitute no justification, ami all persons concerned in executing such judgments or sen- tences are considered in law as trespassers. This distinction runs through all the cases on the subject, and it proves that the jurisdiction of any court exercising authority over a sub- ject may be inquired into in every other court, when the pro- ceedings of the former are relied on and brought before the lat- ter by the party claiming the benefit of such proceedings. '\c> The principle, then, is that a judgment thus pronounced is not merely erroneous, and so gaod and valid until reversed, but null and void ah uiltio.^d) Where the want of jurisdic- tion relates to the subject-matter a court cannot render a legal judgment in it, even for the defendant to recover his costs, unless this be expressly authorized by statute. (e) § 16. And so it is where the jurisliction consists of the appointment of persons to discharge certain duties. For example, a probate court cannot appoint an administrator while there is a qualified executor capable of exercising the authority entrusted to him by the testator, either with or without limitation. And if such appointment be made, the letters of administration are absolutely void, and if a judg- ment be rendered against such an one in the usual forms, the estate of the testator is not thereby bound in any degree. (_/") (/>)Elliott ». Picrsoll, 1 Pet. 340. (*>)Co]lamer «. Paige, 35 Vt. 387. (c)EIliott V. Picrsoll, 1 Pet. .340. (/jGrittith v. Frazier, 8 Cranch, 8. (djFi.sher v. llarnden, 1 Paine C. C. 58. 12 LEGAL EFFECT OF ACTIXG Willi 3 UT JURISDICTION. § 17. The principle lias bean carried so Lir as to include a discharge by habeas corpus; as, for instance, where a pnsoiier was released on habeas corpus from the custody of the sheriff who had made the arrest, on a ca. sa., by a supreme court commissioner, and the sheriff was prosecuted for an escape, and offered the discharge in evidence as a justification, the court held that the proceedings on the habeas corpus were coram nou judlce, and no defence to the officer, because the power to discharge under the habeas corpus act did not relate to a prisoner in execution by legal process. (r/) The principle extends, too, to courts martial, (/i) Nor is it different in a case where the jurisdiction is merely tran- scended. It is as if there were no jurisdiction, as, for instance, if the jurisdiction is enforced beyond the defined territorial limit within which it is to be exercised, (i) § 18. Where suit is instituted in a court without jurisdic- tion, and the court is afterwards invested with jurisdiction in such cases, this subsequent investiture does not cure the prior defect, since without jurisdiction all acts are not voidable, but void absolutely. (J) § 19. Nevertheless, sometimes the doctrine of stare de- cisis may, by way of estoppel, protect acts and proceedings had without jurisdiction, as where appeal is taken from the judgment of a court, and the appellate court reverses the judgment and remands the case for trial again, and the case comes up on appeal the second time, it has been held too late to object to the want of jurisdiction in the court below. (A:) And this goes on the principle that "a su^jerior court cannot review or reverse its own decisions, solemnly made, unless in some regularly prescribed method for rehearing. "(I) The supreme court of the United States have gone so far as to hold on this point that where the merits of a case have been passed upon by the supreme court, and the cause has {g)Ciih\e V. Cooper, 15 Johns. 152. (^jSomple v. Anderson, 9 Gil. (111.) (A)Barrett «. Crane, 16 Vt. 250. 653. (2)Kenney «. Greer, 13 111. 441. (^)Hallowbusli v. McConnell, 12 {j)Mora V. Kuzac, 12 La. Ann. 754. 111. 2U3. LEGAL EFFECT OF ACTING WITHOUT JUBISDICTION. 13 been remanded, it is too late to raise the question of jurisdic- tion even in the lower court ;(/;;) and the ground of this is thus stated: "Whatever was before the [supreme] court, and was disposed of, is considered as finally settled. The inferior court is bound by the decree as the law of the case, and must carry it into execution according to the mandate. They can- not vary it, or examine it, for any oilier purpose than execu- tion, or give any other or farther relief, or review^ it upon any matter decided on appeal for error appaient, or intermeddle with it, further tiian to settle so mucii as has been remanded. And on a subsequent appeal nothing is brought up but the proceeding subsequent to the mandate. "(//) § 20. The courts of a foreign nation must judge of their own jurisdiction so far as this depends on municipal rules, and the courts of other countries must respect the decision; but if they exercise a jurisdiction which the sovereign could not confer according to the law of nations, their judgments are not regarded by others, however available within the dominions of the sovereign. (o) (?ft)Skillem's Exec'rs v. May's (7i)Sibbald «. U. S. 12 Pet. 492. Exec'is, 6 Crauch. 267. (idicai-i. courts were, on the ordinary prin- Scully v. Lowonstein, 5(! Miss. O'rl. ciples governing a state of war, and And if a judge refuses to grant a on the principle of de /«c^w officers, motion for a want of jurisdiction possessed of lawful jurisdiction this refusal does not bar the enter- after tlie rcliellion had risen to the taining of the motion by a judge amplitude and dignity of civil who lias jurisdiction. Bank «. war. Wilson, fcO X. C. 200. ILLEGAL COURTS. 15 I shall set out pretty fully the litigation thereon, so far as it has heen develoioed in the United States courts and state courts. During the war a court was estahlished hy the rebel gov- ernment, and called the "District Court of the Confederate States of America for the northern district of Alabama." In this, one was tried for treason against the confederate states in aiding the United States troops, and was acquitted. Sub- sequently he brought suit for malicious prosecution against the judge, clerk, marshal and members of the grand jury. Being defeated, he sued out a writ of error, and brought the cause before the United States supreme court, which re- marked : "The rebellion, out of which the war grew, was witliout any legal sanction. In the eye of the law it had the same prop- erties as if it had been the insurrection of a county, or smaller municipal territory, against the state to which it belonged. The proportions and duration of the struggle did not affect its character, nor was there a rebel government de facto, in such a sense as to give any legal efficacy to its acts. It was not recognized by the national, nor by any foreign, govern- ment. It was not at any time in possession of the capital of the nation. It did not for a moment displace the rightful government; that government was always in existence, al- ways in the regular discharge of its functions, and constantly exercising all its military power to put down the resistance to its authority in the insurrectionary states. Tiie union of the states for all the purposes of the constitution is as perfect (1869) and indissoluble as the union of the integral parts of the states themselves, and nothing but revolutionary violence can in either case destroy the ties which hold the parts to- gether. For the sake of humanity, certain belligerent rights were conceded to the insurgents in arms. But the recogni- tion did not extend to the pretended government of the con- federacy; the intercourse was confined to its military author- ities. In no instance was the intercourse otherwise than of this character. The rebellion was simply an armed resist- ance to the rightful authority of the sovereign. Such was its 10 ILLEGAL COURTS. cliaracter, in its rise, progress and downfall. The act of the confederate congress creating the tribunal in question was void ; it was as if it were not. The court was a nullity, and could exercise no rightful jurisdiction; theforms of law with which it clothed its proceedings gave no protection to those who, assuming to be its officers, were the instruments by which it acted. "(5) § 23. But in Louisiana it has been held that confederate legal proceedings may be so far legalized subsequently as to confirm titles acquired thereunder. And so, where suit was brought on promissory notes, and the defence was "that the land purchased, and for which the notes were executed, was sold at a probate sale under and by virtue of orders from a pretended court, which, with all its officers, held their as- sumed powers from the insurgent authorities then in rebell- ion against the government of the United States, and that the proceedings had under the illegal authority in relation to the sale of the property, the appointment of an administrator, etc., are null and void, and that the defendants being without title are not bound for obligations having no legal effect," the court held that the proceedings had been legalized by the constitution of 1S68, which provided that "all judgments and judicial sales, marriages, and executed contracts made in good faith, and in accordance with existing laws in this state, ren- dered, made, or entered into, between the twenty-sixth day of January, A. D. 1861, and the date when this constitution shall be adopted, are hereby declared to be valid, "(c) § 24. In Alabama, a controversy arose as to confederate money as legal tender — a rather common question after the close of the war in that and other southern states. The case is a very elaborate and important one, and coming from one of the states involved in the rebellion I feel myself justified in quoting somewhat fully from it. It was a case between a ward and his guardian, acting previously under the direction of a confederate probate court. The supreme court held : "There is but one state of Alabama known to this tribunal (i)IIickman v. Jones, 9 Wall. 200. (cjHnghes' Adm'r v. Stiuson, 21 La. Ann. 540. ILLEGAL COURTS. 17 by its laws; that is the state of Alabama, a member of the Union, acting under the constitution of the United States and in conformity to its requisitions. Any other state of Alabama is an usurpation, unconstitutional, illegal and void, and the acts of its general assembly partake of its own defects. They have no legal standing in this court, unless it is shown that they have been re-enacted, or adopted by the rightful gov- ernment of the state. That the rebel government was an organized political body within the limits of this state is not enough to give its enactments the force of laws. It must be a state admitted into the Union, and must derive its powers from the constitution and laws of the United States. Scott v. Jones, 5 How. 343; Clierokee Nation v. Georgia, 5. Pet. 18. "The rightful state of Alabama — the only one known to this court as a state — has never been out of the Union, nor has it ever been destroyed, though its government has been suspended. The ordinance of secession was a nullity. It neither overthrew the state nor repealed its laws. Its effects were therefore nothing. This is expressly affirmed by the supreme court of the United States in the case of Mauran v. Insurance Company, in which, speaking of the rebelling states, that court says : 'We agree that all the proceedings of these eleven states, either severally or in conjunction, by means of which the existing governments were overthrown, and new governments erected in their stead, were wholly illegal and void, and that they remained after the attempted separation and change of government, in judgment of law, as completely under all their constitutional obligations as before. The con- stitution of the United States, which is the fundamental law of each and all of them, not only afforded no countenance or authority for these proceedings, but they were, in every part of them, in express disregard and violation of it. 6 Wall. 13, 14. "Then the rebel state government of Alabama was uncon- stitutional and wholly void — for what is unconstitutional is illegal and void, so far as law is concerned — and inasmuch as the rightful state of Alabama was never destroyed, or out of the Union, no new state could be formed or erected within v.l— 2 IS ILLEGAL COURTS. its houiularies without the consent of congress, which was neither asked nor obtained. Const. U. S. article 4, § 3, cl. 1; Pasch. Ann. Const. 234, 235. The general assembly of this illegal government and its laws could be no better than itself. All were void, ex nih'do nihil fit. To give such laws any validity would be to justify, so far as such laws went, the abortive attempt to overthrow the Union itself. These rebel governments have been declared illegal, and conse- quently void, by all the departments of the government of the United States, which is the supreme government in this nation. The legislative, the executive, and the judicial all concur in denouncing them as illegal. Act of Congress, March 2, 1867; President Johnson's Proclamation, .June 21, 1865; Maiiran v. Insurance Co. 6 Wall. 1, 13, 14; Texas v. White, January term Sup. Ct. U. S. 1869. "The law, then, which is presumed to be appealed to by the defendant is not a law of this state as at present organized? and it never was a law of the rightful state of Alabama, nor is it a law of such a character as state or national comity requires should be treated with any respect ; it afforded the guardian no authority to deal with his ward's estate as he has done, because it carried with it no authority to bestow for that purpose. ***** To give this enactment the validitj'of law would be to declare that the rebel organization holding control of the state of Alabama was the legal govern- ment of the state during the whole course of the late war, and that such government, for the time being, was a govern- ment in the state of Alabama above the constitution and laws of the United States, and that its enactments were legal — that is, they clothed those who acted under them with author- ity as valid laws, whatever might be their character. "There were, doubtless, many things done, and some laws passed in this state, during the rebellion, which ought to l)e ratified and adopted, but this enactment is not one of them. To adopt it would be to sanction the late rebellion and dis- regard the constitution of the United States. It is known to the court as a matter of history that ' the confederate states ' and 'the said state,' mentioned in the caption of said enact- ILLEGAL COURTS. 19 mont, were rebel organizations at war with the Unitel States, seeking to destroy that government; and that 'the bonds and notes of the confederate states, or the state of Alabama,' were issued by such rebel organizations in aid of such rebel war, and as such they are illegal and void ; if the rebellion failed, as every patriotic citizen had good reason to believe and to desire, then they were inevitably bound to be utterly worthless. They were not such a currency as any state government, either de facto or lie jure, within the limits of the Union, could make a legal tender for the payment of debts, unless, perhaps, the agreement was to i^ay in such currency, and even then it may be doubted whether the courts of the state, as at present or- ganized, would enforce such contracts as being tainted with crime and in contravention of public policy. 28 Ala. K. 514. "It seems that this might suffice to settle the merits of this case, but, as it was passed in oral argument at the bar by the eminent counsel for the appellant, and is now again urged in his brief that this case turns wholly on a single proposition, it is fit that the court should so far consider this proposition as to settle it for the future. The proposition is: -During the war the constitution and laws of the United States were wholly suspended in Alabama, and were revived as the forces of the United States acrjuired the con- trol of the territory. The constitution and laws of the United States regained their power and control as the army did — they marched jja?'iprt.s'5?f with the army.' "This seems to me undistinguishable from the doctrine laid down in the case of Watson and Wife v. Stone, 40 Ala. 450, which has been repudiated and overruled by this court, Coleman v. Ckisholm, January T. 1860. If it does not mean this, it is not perceived what the presence of the army had to do with the matters involved in this case in any way. The defendants below do not insist that they are excused by any military order, or that the guardian was forced by the insur- rectionary army to make an illegal investment of his ward's estate. Unless, then, there was a government connected with this army whose laws the army supported and gave validity by reason of its support, it does not appear to me that its 20 ILLEGAL COURTS. presence or absence was of any consequence in this suit. If, however, it is intended that this mihtary occupation, which suspended the constitution and laws of the United States during its continuance, gave validity and legality, whatever government may have been connected with it, so as to give force and effect to its laws in this court, without re-enactment or adoption by the legislative department of the government as now organized, then we cannot accept the proposition as true, nor sanction the consequences attempted to be adduced from it. This court can only acknowledge such states and such governments as have been previously acknowledged by the proper political department having the power to make such acknowledgment. Scott v. Jones, 5 How. 343; Luther V. Borden, 7 How. 1. No such government has ever been acknowledged, therefore this court does not know that it ever existed as a law-making authority. If it did exist as such it was forbidden by the constitution, and was wholly illegal and void. It had no legal authority and could communicate none to its enactments. The evil tree cannot bring forth good fruit. The offspring must follow the fate of tlie mother. "((/) § 25. In another very elaborate case, decided at the same term, it was held that the provisional court or courts under the provisional government established by the president, in Alabama, in 1865, had jurisdiction, even although congress afterwards declared the presidential act to be illegal. And Judge Saffold, in a concurring separate opinion on this mat- ter, and as to the authority of rebel courts, thus laid down the grounds for not allowing the adjudications to be disturbed, and holding them so far valid as to be capable of hema: after- wards ratified or legalized. "It is insisted that the rel.. .ourts had no jurisdiction of the causes they determined, and that it is beyond the power of state legislation to validate their judgments ; that the action of a court without jurisdiction is void, and the statute alone would constitute the adjudication upon the rights of the parties. This is an objection which ought to be conclusive against such legislation, except under those extraordinary circumstances which occur but seldom in the (d) Hallo. Hall, 43 Ala. 497. ILLEGAL COUItTS. 21 history of a people, and which may be admitted as exceptional cases. The federal constitution does not forbid a state legis- lature to exercise judicial functions. The ordinances of a state convention are of as high authority as the state consti- tution.* During the war the courts remained as they were constituted under the legal government. Most of the judges were legally elected; the jurors were such as were qualified to serve by the valid law. The people retained their right to the administration of justice without denial or delay; they re- sorted to these courts for a decision of the issues between them. When the war was over, what hindered them, in their sovereign capacity, from enacting a bill of peace to quiet the litigation of years'? What was more just than to stamp the adjudica- tions of the rebel courts with the character of provisional judgments — to be annulled and a new trial granted for good cause shown "? The principle of the validity of de facto govern- ments is undoubtedly applicable to the provisional govern- ments since the war, and perhaps, on all ordinary subjects, to that existing during its continuance. It depends solely on the simple and sutticient reason that, when an illegal govern- ment has existed for a considerable time, it is better to ac- quiesce in what has been done than to still further convulse and demoralize society by vainly seeking to run a thread of legality through the mode of its doings. "(e) The principle is now well settled by the United States supreme court that the judgments rendered by confederate courts during the civil war were and are valid and binding, so far as they did not tend in themselves to the subversion of the national- government or the rights of citizens under it.(/) In Virginia the confederate government has been declared to have been de facto, so that contracts made under it are valid.((/) But Ohio holds that their acts could not affect non-resi- dents, citizens of loyal states.(/i) And this would seem to be a just, if not a necessary limitation. *Tlmt 1 do not understand. See, to the same ell'ect, BaiU'v v. {(')Fi)\ve\] V. Boon, 43 Ala. 487. Fitzjrcrald, 56 Miss. 57!». (/)IIorn V. Lockhart, 17 Wall. (.(7)Pulaski Co. «. Stewart, 28 57) And so in other states; hence the statement of Bouvier is at least unauthorized. § 27. However, his definition of what constitutes a superior court may be accepted, namely : such as have their jurisdic- tion by the common law, and b}- the constitution of the United States, or of the state where located. (Page 69.) And, in gen- eral, an inferior court may be said to be one proceeding, by force of particular statutes, out of the course of the common law. Or, again, courts of record may be regarded so far as of general jurisdiction, and those not of record as inferior. (c) In New York the definition is laid down that a court of gen- eral jurisdiction has power to hear, try and determine, accord- ing to law, all actions local to the county where it sits, and all transitory actions wherever the cause may arise. (cZ) And again, if a court has "general jurisdiction of an enumerated class of actions, without reference to the place where they arise, or the parties to them reside, or to the amount sought to be recovered, being a court of record and proceeding ac- cording to the general course of the common law, it is regarded quoad hoc a superior court within the meaning of the rule; while a court is one of limited jurisdiction where its jurisdic- tion of every action — of the action itself — is made to depend on the place where the defendants reside, or the fact that they are personally served with a summons within a desig- nated locality smaller than a county. "(>) Again, it is said that "courts of record which have an original, general jurisdiction over any particular subjects are not courts of special or lim- ited jurisdiction, or inferior courts, in the technical sense of the term, because an appeal lies from their decisions. "(/) § 28. It will be observed that there may be a general jur- isdiction, limited to particular subjects, applying, however, (/^)Kempe's Lessees. Keniiody, 5 (c)Beaubiea «. Briukerholf, 2 Craneli, 185. Scam. 272. *lt does apiiear to me that there (rf)Foot «. Stevens, 17 Wend. 484. is a striking indefinitene.ssandcon- (^')Simmons«.DeBare,4Bosw.555. fusion in this pa.ssage. (/)Devaughn «. Devaughu, 19 (ijFoot t). Stevens, 17 Wend. 4b4. Gratt. 5G5. 24 SUPERIOB AND INFERIOR JURISDICTION. of course to the whole class to which the particular subjects belong. And this is also recognized in a case cited above from the suj^reme court of the United States, in regard to a court endowed with special power to ascertain who had sided with Great Britain in the revolutionary war, under certain legislative acts of New Jersey, confiscating the property of such persons. It was contended, in an action of ejectment brought by one who had been thus divested of property, that the court having the power of such inquiry must be regarded as an inferior court of special and limited jurisdiction. The court was the county court of common j)leas, but it was held that the New Jersey statutes "could not be fairly construed to convert the court of common pleas into a court of lim- ited jurisdiction in cases of treason," because "it remains the only court capable of trying the ofifenses described by the laws which have been mentioned, and it has jurisdiction over all ofifenses committed under them. * * * * It is un- derstood to be a court of record, possessing, in civil cases, a general jurisdiction to any amount, with the exception of suits for real property. In treason, its jurisdiction is over all who may commit the ofifense. Every case of treason which could arise under the former statutes is to be fiuall}' decided in this court. With respect to treason, then, it is a court of general jurisdiction, so far as respects the property of the accused. "(^) § 29. In order to be a superior court it is not needful that in all particulars a court conforms to the common law course of proceeding. It may vary in obedience to a statute, and even thus go contrariwise to the common law. On this point the supreme court of the United States remark: "The jurisdiction which is now exercised by the common law courts in this country is, in a very large proportion, dependent upon special statutes conferring it. Many of these statutes create for tlie first time the rights which the court is called upon to enforce, and many of them prescribe with minuteness the moJe in wliich these rights are to be pursued. Many of the powers thus granted to the court are not only at variance with (^)Ivempc's Lessee v. Kennedy, 5 Ciiinch, 185, ISG. SUPERIOR AND INFERIOR JURISDICTION. 25 the common law, but often in derogation of that law. In all cases where the new powers thus conferred are to be brought into action in the usual form of common law or chancery pro- ceedings, we apprehend there can be little doubt that the same presumptions as to the jurisdiction of the court, and the con- clusiveness of its action, will be made as in cases falling more strictly within the usual powers of the court. On the other hand, powers may be conferred on the court, and duties re- quired of it, to be exercised in a special and often summary manner, in which the order or judgment of the court can only te supported by a record which shows that it had jurisdiction of the case. The line between" these two classes of cases may not be very well defined, nor easily ascertained at all times. There is, however, one principle underlying all these various classes of eases which may be relied on to carry us through them all when we can be sure of its application. It is that whenever it apj)ears that a court possessing judicial powers has rightfully obtained jurisdiction of a cause, all its subse- quent proceedings are valid, however erroneous they ma}' be, until they are reversed on error, or set aside by some direct proceeding for that purpose. The only difficulty in applying the rule is to ascertain the question of jurisdiction. "(/i) It is a legitimate conclusion, from the preceding quotation, that the same court may be one of general jurisdiction in regard to some subjects, and of special in regard to others, or superior and inferior at once, from the nature of the subjects submitted, and the mode of determining them respectively. (A)Harvoy v. Tylor, 2, Wall. 342. 26 PRESUMPIIONS. CHAPTER VI. PEESU:^IPTIONS. f 30. Presumptions as to superior courts and to inferior courts. 31. Classiticatiou. 32. Wliat is presumed as to superior courts. 33. How jurisdiction of a superior court impeached. 34. The genera] rule of presumption. 35. How it is limited as to superior courts. 3(3. HoAV limited in reference to the mode of procedure. 37. Particular jurisdictional facts presumed. 38. KegularJtj' of proceedings presumed. 39. Presumptions conclusive as to discretion. 40. Presumiitions adverse as to limits of jurisdiction of inferior courts. 41. Specific facts must appear. 42. Examples. 43. Powers of inferior court subject to a strict construction. 44. Justitication of ministerial acts under proceedings of courts. 45. Legislature may change presumptions. 40. Presumption of regularity as to inferior courts. § 30. The preceding chapter has led the way to a very important plineiple of jtirisdiction, namely, the exactly oppo- site points of view in which the decisions of superior and of inferior courts are regarded, which may be briefly stated thus in general terms : nothing will be presumed to be with- out the jurisdiction of a superior court of general jurisdiction, and nothing presumed to bo within the jurisdiction of an inferior court having limited or special jurisdiction. We pro- ceed to consider the illustrations and logical consequences of the principle tiuis standing upon the distinction between the two classes of tribunals. § 31, The presumptions, however, are also of two classes in regard to all courts : (1) those concerning the possession of jurisdiction; and (2) those concerning its proper exercise. We consider these in their order. § 32. In regard to superior courts, it is not only presumed PKESUAIPTIONS. 2T that they have jurisdiction, but also every presumption must be iiidulged in all things necessary to the jurisdiction of a court having exclusive jurisdiction of the subject. And in such case, the judgment is not liable to attack by other par- ties, and in another tribunal, for the supposed irregularity of proceedings. A domestic judgment on a subject witliin the jurisdiction of the court, and apparently regular on the record, is to be taken as conclusive of the regularity of pro- ceedings by which jurisdiction was acquired over the parties^ unless attacked in a direct proceeding, (a) § 33. For, in a direct jjroceeding, the jurisdiction of even a superior court may be assailed and disproved by parol evi- dence, (6) the rule being applied in a conclusive manner only in a collateral proceeding, as, where the record of a judgment or decree is relied on collaterally, jurisdiction must be pre- sumed in favor of a superior court conclusively, although it be not alleged or fails to appear in the record ;(c) but other- wise the presumption is liable to be rebutted. And also, on apparent defect jurisdiction may be impeached collaterally ; as, for instance, where a summons either shows a want of service or insufficient service, and the record does not show that the court found that it had jurisdiction, the presump- tion will be overcome, and it will be held that the court acted upon the insufficient service, since the presumption must then be that the court acted on the service appearing in the record. (c^) § 34. The rule is that jurisdiction is to be presumed until the contrary is proved. And so, where one contended that entire copies of the record were annexed to his bills, but only portions were incorporated in the bills, and these por- tions did not show the appearance, plea, and submission to judgment; whereas the portions annexed, but not set out,^ did show these particulars, the court stated the rule, and then remarked: "We certainly should not hold the contrary to be ((/)l)!iick V. Epperson, 40 Texas, (f)Swc';ircngen v. (lulick, 67 111. 11'.). 211. (/y)SpauIding v. Record, 65 Me. {d) Clark v. Thompson, 47 IIL 22U. 27. 28 PRESUMPTIONS. proved as long as any part of the record in which t}ie fact of jurisdiction would be likely to be shown is withheld. "(h. (/)Preiili.s.s f). Parlis, 65 Me. .■)d9. (jjlJrowntield w. Weight, 9 Ind. 305 ; Murkel v. Evans, 47 Ind. 329. PRESUMPTIONS. 29 be presumed when the validity of the judgment is questioned collaterally. On the other hand, if it is shown by the record that the judgment was rendered when no jurisdiction was acquired over the subject-matter or the person, it is void, and will be so treated in a proceeding direct or collateral. "(/t) § 38. The regularity of subsequent proceedings — that is to say, the exercise of jurisdiction obtained — rests on the same principle until sucessfully impeached; as, for instance, that a cause was regularly continued till a subsequent term, and that parties were in court until the cause was tinally disposed of.(Z) And to impeach the proceedings irregularities must be affirm- atively shown, as also all acts or omissions affecting the validity of the judgment. (m) The sufficiency of the evi- dence on which a judgment rests is likewise presumed.(H) § 39. Presumptions are conclusive, and not to be rebutted where a matter is confided to discretion, and no appeal is given". "It is a universal principle that where power is dele- gated to any public officer or tribunal over a subject-matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject-matter, and individual rights will not ba disturbed collaterally for any- thing done in the exercise of that discretion within the author- ity and power conferred. The only questions which can arise between an individual claiming a right under the acts done and the public, or any person denying its validity, are power in the officer, and fraud in the j^arty. All other questions are settled by the decision made, or the act done, by the tribunal or officer, whether executive, legislative, judicial, or special, unless an appeal is j)rovided for, or other revision by some appellate or supervisory tribunal is prescribed by law."(o) § 40. In regard to inferior courts the presumption is ad- verse, and their action must be confined strictly within the prescribed limits, and must appear so on the face of the pro- ceedings, as also all the facts and grounds of the jurisdiction. (/■)F>ak(T V. ChapliiK', 12 la. 204, (n)Grignon's Lessee v. Astor, 2 and cases cited. How. (U. S.) 340. (/)IIousht).The People, 66 Ill.lSl. (o)\J. S. v. Arredondo, 6 Pet. 729. ('rt()People V. Kobinson,!? Cal.371. 50 rRESUMl'TIOXS. The rule is still more stringent in criminal proceedings, even in a preliminary examination before a justice of the peace, (7>j or the taking of a recognizance b}- a justice. ((/) And in a civil case the docket of the justice must show that he had jurisdiction of the plaintifif as well as defendant. (r) § 41. Hence a general averment of jurisdiction amounts to nothing; the facts upon which it depends must specifically appear. (_sj Nor is it sufficient that jurisdiction may be inferred argumentatively from the averments, but the juris- diction must be positively averred, and the fact on which it depends expressl}' set forth. (/) The facts to be thus set forth are defined to be all such as in the absence thereof the court oainiot rightfully hear and determine any question concera- ing the matter in dispute ;(?t) that is to say, every fact essen- tial to the jurisdiction(y) should appear in the record. § 42. The principle applies to the laying out of a road, so that j)roceedings for this purpose must show affirmatively that the road established lies within the limits of the county, or the jurisdiction cannot be sustained; nor is the objection waived by the failure of a party to appear and allege the want of jurisdiction. (/f) It also applies to an officer impos- ing a military fine, as, where a warrant was issued by a captain against a private for "a fine legally imposed upon him for neglecting to perform military duty," but the warrant did not state by whom the fine was imposed, it was held that the warrant was void, and the officer was liable to trespass for arresting the private. (x) Moreover, it has been strangely held that it may apply even to a supreme court, as in Missis- sippi, formerly, where the supreme court said of itself: "By a uniform train of decisions in this tribunal, from its estab- lishment to the present time, it has been held to be a court (;))State ?;. Metzger, 2(j Mo. 66. ((OBoard of Com. «. Markle. 4*', (g)State«. Gatchenheimer, 30Ind. Ind. 111. 63. (t;)State v. Ely, Judge, 4.i Ala. (r)Clark v. Holmes, 1 Doug. 575. -) Prima facie, every court has the power of judging con- cerning its own jurisdiction in cases where the want of ju- risdiction is not apparent on the face of the proceedings. But in some states, at least in South Carolina, it has been held that a party is not compelled to submit the question of jurisdiction to the decision of the inferior court, but may remove it at once to the superior court by ajjplying for a prohibition, (c) § 57. As to collateral inquiries, the principle is, "that the jurisdiction of any court exercising authority over a subject *For full explanation of tlic topic (r^) Davis v. Packard, s Pet. 323. of this chapter, 1 refer to my recent (i^) People v. Clark, 1 Parker C. R_ work on " lies Adjudicat'i." 3(!I. (c')Slate «. Scott, 1 Bailey, 2')6. 42 HOW JURISDICTION IS INQUIRED OF. may be inquired into in every other court wlieii the proceed- ings of the former are relied on and brought before the latter by the party claiming the benefit of such proceedings. "(fZ) And the inquiry may relate to jurisdiction of either subject- matter or parties, and the only diiference herein as to courts of superior and of inferior jurisdiction is as to the presump- tions of which we have treated in a previous chapter, (e) And where proceedings are found to have been without jurisdiction it is unimportant how technically correct and precise the record may appear, the judgment is void to every intent, and must be so declared by every court in which it is presented, although on the other hand no judgment is to be impeached collaterally, even for the grossest irregularities or errors, where the jurisdiction was complete. (/V!" § 58. In an early case the question arose in the supreme court of the United States whether the decisions of foreign courts were reviewable in American courts. It was said thereon: "The court pronouncing the sentence of necessity decided in favor of its own jurisdiction, and if the decision was erroneous, that error, it is claimed, ought to be corrected by the superior tribunals of its own country, not by those of a foreign country. This proposition certainly cannot be admit- ted in its full extent. A sentence professing on its face to be the sentence of a judicial tribunal, if rendered b}" a self-con- stituted bod}-, or by a bod}^ not empowered by its government to take cognizance of the subject it had decided, could have no legal effect whatever. The power of the court, then, is of necessity examinable to a certain extent by that tribunal which is compelled to decide whether its sentence has changed the right of property. The power under which it acts must be looked into, and its authority to decide questions which it pro- fesses to decide must be considered. But although the gen- eral power by which a court takes jurisdiction of causes must (d)Lessee of Hickey v. Stewart, 3 St. 498; Rose v. K. 11, 47 la. 422. How. 762. fBut recitals of records are often (<')Gray v. Larrimore, 2 Abbott, conclusive as to parties and .iuris- (U. S.) 548. dictional facts. See " Res Adjudi- [J] Sheldon v. Newton, 3 Ohio cata." HOW JURISDICTION IS INQUIRED OF. 43 1)6 inspected in order to determine whether it may rightfully do what it professes to do, it is still a question of serious difficulty whether the situation of the particular thing on which the sentence has passed may be inquired into for the purpose of deciding whether that thing was in a state which subjected it to the jurisdiction of the court passing the sentence. For example : in every case of a foreign sentence condemning a^ vessel as a prize of war, the authority of the tribunal to act as a prize court must be examinable. Is the question, whether the vessel condemned was in a situation to subject her to the jurisdiction of that court, also examinable? This question, in the opinion of the court, must be answered in the affirma- ative. Upon principle it would seem that the operation of every judgment must depend on the power of the court to render that judgment, or, in other words, on its jurisdiction over the subject-matter which it has determined. In some cases that jurisdiction unquestionably depends as well on the state of the thing as on the constitution of the court. If, by any means whatever, a prize court should be induced to con- demn as prize of war a vessel which was never captured, it could not be contended that this condemnation operated a change of propert3^ Upon j)rinciple, then, it would seem that to a certain extent the capacity of the court to act upon the thing condemned, arising from its being within or without their jurisdiction, as well as the constitution of the court, may be considered by that tribunal which is to decide on the effect of the sentence. "Passing from principle to authority, we find that in the courts of England, whose decisions are particularly mentioned because we are best acquainted with them, and because, as is believed, they give to foreign sentences as full effect as are given to them in any part of the civilized world, the position that the sentence of a foreign court is conclusive with respect to what it professes to decide is uniformly qualified with the limitation that it has, in the given case, jurisdiction of the subject-matter, "(fir) § 59. On much the same principle the matter of the juris- {^)Kose V. lliiiiely, 4 Craiich, 2G8. 44 HOW JURISDICTION IS INQUIRED OF. diction of courts in another state will be inquired into by inspection, or on a plea.(/t)* § 60. In no case, however, will a court inquire into the question of jurisdiction as to a case pending and undeter- mined in a court of general jurisdiction legally competent to determine its own jurisdiction, and having acquired a prior de facto jurisdiction — a rule founded on comity, and necessary to prevent injurious collisions. (i) § 61. Where the jurisdiction of even an inferior court is dependent on a fact which that court is required to ascertain and settle by its decision, such decision is held conclusive; and, furthermore, it has been claimed that this principle is not confined to determinations of a judicial character.(/) § 62. Not only may courts look into the matter of juris- diction, but in every case the}' are bound to inquire whether facts, as jiresented to them, give them jurisdiction. (A;) § 63. It is a settled rule that an objection to the jurisdic- tion as to the subject-matter may be taken at any time.(Z) And even for the first time in the appellate court, because the objection lies at the foundation of the whole case.(m) Yet the question of jurisdiction cannot properly be made to dej)end upon a subsequent fact disclosed by the evidence. (n) But as to divorce cases the reverse has been held in Illinois,(o) and right!}', I judge, although it be an exception. § 64. There are three methods by which the want of juris- diction may be taken advantage of : (1) by motion to dismiss; (2) by demurrer; (3) by plea. And, where the former is em- ployed, it is no valid objection to the motion that it was made (/i)Ke]ly V. Hoo7ier'9 Ex'rs, 3 (i) Ex parte Bu>i\\nel\, ?> Ohio, QOl. Yerg. (Tenn.) 396. (j)R. R. v. City of Ev:insville, 15 *See also my work on " Kes Ad- Ind. 421, 423. judicata." (A')Stamps ». Newton, 3 How. But where a judgnicnt or decree (Miss.) 34. of a court of general civil jurisdic- (Z)Stearly's Appeal, 3 Grant, 270. tion is offered as evidence collater- (m)Coleman"s Appeal, 75 Ta. St. all}', its validity cannot be ques- 460. tionedfor errors which do not affect (/i)Sheldon «. Newton, 3 Ohio St. the jurisdiction. Hall «. Hall. 12 49!). W. Va. 1. (<>) Way v. Way, 64 111. 410. HOW JURISDICTION IS IXQUJRED OF. 4:5 by the jjarty who brought the caase to the court. Qj) And such a motion is never out of time where the want of juris- diction pertains to the subject-matter. (5) The motion also may be made for the absence of an allegation in the declara- tion which may be amendable in the discretion of the court. (r) In such case, of course, granting leave to amend is equiv- alent to overruling the motion to dismiss, (s) It is manifest that such a motion usually relates to a want of jurisdiction of the subject-matter,(i) unless, indeed, on a defective allega- tion as above noted. Where a defect of jurisdiction is manifest from the plead- ings, a demurrer is the proper course. (uj Where the want is not apparent, it may be set up b}' plea.(i;) But in regard to the person, it must of course be put in as a i^lea of abatement, and it is too late to object after pleading in bar to the merits. (»?) And, like other pleas in abate- ment, it must give a better writ, and therefore give jurisdic- tion to some other court of the state, although where it ap- pears that neither the party nor his property is within the jurisdiction of the state, the court will stay all further pro- ceedings at any stage. (aO And, if no court of the nation has jurisdiction, the defendant may avail himself of the defence under a i)leato the merits of the action or a plea in bar,(?/) a distinct plea to the jurisdiction being only proper when some court in the nation has jurisdiction of the cauoc, but not the court wherein the suit is brought. And it has been held in Pennsylvania that state courts having no jurisdiction of a con- sul, they will stop the proceedings at any stage, even after the general issue is pleaded, if it appears that the defendant is a consul. (^) But where the want of jurisdiction arises from the fact tliat (p)Wil(liuan v. Ilidcr, 2:5 Vt. 176; (?/)Gnint, v. I^avis, 7 3Ioni-. 222. Jn re Collego Slrect, U 11. I. 472; (!))Iveiser «. Viindcs, -if. Ind. 174. Graham v. liingo, 07 Mo. 324. (w)Smitli v. Elder, o .Johns. 113. (r/)St()nghtc)ii «. Molt, 13 Vt. 181. (.r) Daniel v. Smith, 5 Mass. 8(;2; (/•)Waketield v. (iandy, 3 Sciam. Jones «. Winchester, 6 N. 11. 491. 134. (^)liea v. Hayden, 3 Mass. 2ti. (.xjShepard 0. Ogden, 2 Scam. 2.')7. (2)Manh:irdt v. Soderstroni, 1 (^)Mastin v. 31arlow, 65 N. 0. 701. Binn..l42. 46 HOW JUEISPICTION IS INQUIRED OF. the defentlants do not reside in the county, the only mode of taking advantage of it is by plea, since proceeding in the cause waives the objection, (a) except as above stated, where it is required to allege the residence in the declaration, in which case the want of the averment is demurrable. § 65. It is held in Wisconsin that a common law certiorari in causes before justices of the peace reaches questions of jurisdiction only, and not matters of error. (^) Also, that on appeal from a justice of the peace the appellate court acquires no jurisdiction if the justice had none.(c) But informalities in making up a docket-entry do not dei)rive the justice of jurisdiction. (rf) although he may lose jurisdiction by not proceeding in a reasonable time to tax the costs and perfect the judgment. (f) A voluntary appearance in a cause may confer jurisdiction, although that appearance may be avowably for only a special purpose, in Iowa,(./') and probably other states, by statute. As to subject-matter, however, a justice of the peace and all inferior courts can only exercise such jurisdiction as is expressly conferred by statute. () Neither is the principle dif- ferent as to an agreed case in which, usually, to guard against imposition, an affidavit is required that the controversy is real, and the proceedings in good faith, to determine the legal rights of the parties. (^7)* (/)Gmn D. Rogers, 4 Gil. (111.) (o)Winn ». Freele, 19 Ala. 172. 134; Ames v. Bowland, 1 Minn. (^)Wyatt «. Judge, 7 Port. (Ala.) 3(i8 ; Dicks v. Hatch, 10 la. 384. 40. ((/jRandolph County v. Ralls, 18 ((/)Joucs v. Hoffman, 18 B. Mon. 111. 30. 656. (A)Danforth v. Thompson, 34 la. *And the court is to keep in view 243. sua sponie the boundary of its juris- (/)Bank «. Giljson, 11 Ga. 4.55. diction. Phillips v. Welsh, 11 Nev. (j)Falkenburgh v. Cramer, Coxe 188. A consenting corporation (N. J.) 31. stands as an individual powerless to (/t)Leigh V. Mason, 1 Scam. (111.) confer unauthorized jurisdiction. 249. Callahan v. New York, 66 N". Y. (/)I)odson 1). Scroggs, 47 Mo. 656. The principle applies to 286. amount as well as to the nature of (m)Jeflfries v. Hardin, 20 Ala. 387. the controversy. Tippack v. Briant, (/i)Lindsey «. McClelland, 1 Bibb, 63 Mo. 580. The law must deter- (Ky.) 262. mine what subjects a court may act SOURCES OF JURISDICTION AS TO SUBJECTS. 49 The priuciiile, however, that consent cannot give juvisdic- tioii does not prevent parties, where the court has jurisdidion of tlie suhjoct-matter, from admitting, by consent, irregular proof of such facts as show that the particular case is prop- erly before it;(r) that is to say, irregularities may be waived. But even this is subject to some restrictions, as where a process is imperatively enjoined by a statute. Concerning this, the supreme court of the state of New York have said: "A num- ber of cases have been cited to show that where an informal process is issued, a defendant waives the informality by appearing and pleading over. In those cases the practice of the court or statute prescribed certain forms, but did not declare that the omission of them should prevent the court from having jurisdiction. In such case the court might well hold that the objection to the want of form in process was waived by a plea which admitted that the part}' was properl}'' in court. But here the statute is imperative. It expressly declares that 'if the defendant be proceeded against otherwise the justice shall have no jurisdiction of the cause.' It does not make any exception to this — as that the justice shall have no jurisdiction unless the defendant j^lead over or waive the objection — but it positively precludes the justice from acquir- ing jurisdiction if the defendant be i^roceeded against other- wise than as the law prescribes. The legislature no doubt had a motive in this. They meant to protect the non-resi- dent defendant from being sued out of his own county, except in the prescribed manner. They may have apprehended that, if they only forbade it, plaintiffs and inferior courts would disregard the law, trusting that the defendant, by his igno- rance of his rights, might so act as to waive them. And to prevent any chance of this the law may have been made as it is expressly that the justice shall not have jurisdiction of the cause if the defendant be not proceeded against as the upon. Brown «. Woody, 64 Mo. (Nazro «. Cragin, 3 Dillon, 474,) nor f)50. And pleading to the merits a failure to object at the time, does not waive a question of juris- (Mathie v. Mcintosh, 40 Wis. 120.) diction as to the subject-matter, (/•)Hills v. Mills, 13 Wis. 628. v.l— 4 50 SOUKCES OF JURISDICTION AS TO SUBJECTS. law prescribes, thus stripping the justice of all official author- ity, and giving him no more power to accept a waiver and acquire jurisdiction than a private individual would have. As Chief Justice Oakley says, in an analogous case, (Cornell x.SinWi, 2 Sand. 291,) 'the imperative dii-ection to dismiss the suit precludes any waiver from being inferred by plead- ing over to the action and going to trial.' This statute ia stronger than a direction to a justice in certain events to dis- miss a suit, as that would almost imply that he once had control over it. But here the beginning of jurisdiction is prevented by the words of the act. The court below say that the defendant, by pleading over, must have agreed to enter an action in the court without process. This would be to infer an agreement contrary to all the facts of the case brought home to the knowledge of the court by the record. The return shows that the defendant was brought before the court by this illegal process, and that it was under that jDrocess that he asked for an adjournment, and obtained it, and asked that he might send for counsel, and got ten minutes to do it in, and under the force of that process he pleaded ; and by virtue of that process, and not of any agreement to enter the action without process, the plaintiff took judgment against the defendant, after waiting more than an hour for his return. The process is returned as the foundation of the action, and no agreement to enter the action without process is pretended in the return. To infer such an agreement, under these cir- cumstances, is to do violence to one's common sense. The suit being commenced by process, an agreement to enter the action without process could hardly be established without an express abandonment of the process, or an express agree- ment to enter or commence the action anew without pro- cess, "(s) I doubt whether this decision can ever be drawn into prec- ■edent, or the construction of the prohibitory clause of the statute referred to therein would be assented to generally. It would, I think, be held not imperative, but directory merely, although, indeed, strongly so. It was meant, as the court {«)Koliiuson V. West, 11 Barb. 310. SOURCES OF .TUmSDICTION AS TO SUBJECTS. 51 say, as a protection of the defeDdiint. It is, therefore, a privilege, and any private privilege may be waived, and any mere personal protection may be renounced. Besides, the court seem to hold that the defendant might be ''proceeded against otherwise," namely, by an express agreement to com- mence the action without process. I judge that always, where process may be dispensed with altogtlier, any irregu- larity therein may be waived. If one may go to trial without process, he may surely go to trial with a defective process. It is different where, as a matter of public polic}-, parties are prohibited from waiving any right, as we have seen in the chapter on Constitutional Limitations a public officer holding a public trust is. Thus, also, in Louisiana, a defendant is expressly jn-ohibited by statute from electing any other than his own domicile or residence as the venue of a suit at law.(^) Anj'thing short of this, I aj^prehend, is to be construed as directory, and as conferring an inviolable privilege on a party, which, being a privilege, may be waived, as we shall see in a subsequent chapter. Where a court has once had jurisdiction, although the authority has been executed so that without consent the court could not open or change the former judgment or decree, the jurisdiction may be restored by consent ; the maxim "consent takes away error" herein applying. (»). And parties may consent to submit matters in dispute, of whatever nature, to arbitrators chosen by themselves. In a certain case it was claimed that the "parties, by an agreement of their own, created a tribunal to try their cause which the law does not recognize, and wdiose proceedings cannot lay the foundation of any judgment of the court." But the appellate court replied that "the princij^le supposed to be involved in this objection is undoubtedly correct, and in its general appli- cation of unquestionable importance ; for no one pretends that parties of themselves can create courts of justice, or judges, or other tribunals, or clothe them with legislative authority ; these can be created only by the legislature. Arbi- (OState «. Fosdick, 21 Li. An. (M)Biown «. Heirs, Hardin, (Ky.) 25b. 449. 52 SOURCES OF JURISDICTION AS TO SUBJECTS. tratoi's may be chosen by the parties, and be clothed with such power and authority as they agree to, and their doings will, in that case, be as final and conclusive as the judgment of a court would be ; not, however, as the doings of a court constituting an integral part of the judiciai-y of the state, but the court of the parties, "(r) However, arbitration may become statutory, and courts may be authorized to refer causes to it by consent, and register the award as a judgment, in which case, of course, the ordinary jurisdictional principles would apply, since such submission could only be of matters within jurisdiction. The awards in private arbitration are rather considered contracts than judgments, and hence the submis- sion may be withdrawn by either part}' before it is completed, by a formal revocation. § 67. We have already remarked, incidentally, that supe- rior courts proceed according to the course of the common law', and we may, in general terms, speak of the sources of our jurisdiction as three in number: (1) Common law; (2) Constitutions ; (3) Statutorj^ law. § 68. But as it is evident that the existence and organiza- tion of courts is the fundamental principle underlying the exercise of judicial jurisdiction and action, it will be appro- priate to consider this first in order. It is competent for a legislature to establish new tribunals for the trial of offences previously committed. («') A law for this purpose is not an ex post facto law within the meaning of the constitution, which consists either in defining that to be an offence which was not an offence before, and punishing it, though committed before the enactment of the law, or else increasing the penalty attached to an offence, and inflictmg the increased penalty upon one whose act was previously committed. Again, a legislature may create a new offence, and designate a particular tribunal to take cognizance of it, and in such case (as well as others) the statutory provisions must be strictly followed, and no court exce^Dt the one desig- nated can take jurisdiction of the offence provided against. (a-) (f))Andrewse. VVlieaton,23 Conn.115. (.t).Vldrich v. Hawkins, 6 Blackf. (wJState «. bliumpert, 1 S. C. 86. 126. SOURCES OF JURISDICTION AS TO SUBJECTS. 53 Where an offence is committed within a particular district or county to which venue is confined as to the court tlierein, and before a prosecution is begun the county is divided, action may be brought within the limits of the new district or county if the locus in quo is embraced within its limits, but the sjjecial fact of venue must be alleged and shown. (?/) And the jurisdiction of courts already established may be enlarged ; and even where a constitution provided that certain county courts should exercise "their present jurisdiction" un- til susj^ended in a manner prescribed, this was held to mean only a limitation on the power to change from county to civil or criminal business, and not a prohibition of additional laws regulating such courts, or enlarging their powers as to county business,(^) the word "present" being regarded evidently as not implying degree, but quality of jurisdiction. An enlarge- ment of equitable jurisdiction as to state courts may be availed of by the United States circuit courts. (a) But the state courts can derive power only from state laws, and cannot execute a penalty arising under a United States statute or the statutes of another state. (&) It is held essential to a grant of juris- diction in special cases, under a constitutional provision con- ferring upon a class of courts original jurisdiction of "all such special cases and pi-oceedings as are not provided for," that it be granted to another tribunal in "providing for" the special cases, and not to a judge at chambers. In a case bringing up this matter the court say: "It is beyond ques- tion that the county judge is not the county court ; and although the legislature may authorize the judges of the sev- eral courts to perform certain duties at chambers in respect to proceedings in a cause, yet some court has jurisdiction of the cause ; and the judge at chambers, whether of the same or another court, acts as a commissioner, or in some other capac- ity, merely in aid of and subordinate to the court having jurisdiction of the cause. It being, we think, beyond dispute that a county judge is not the county court, if jurisdiction of 0/)State V. .lackson, 89 Me. 294. (ajBroderick'.s Will, 21 AVali. r,04. (j)Broa(hvoIl v. People, etc, 76 (i) Tele. Co. «. Nat. Bank, 74 111. 111. 554. 217. 54 sorRCES OF juiusdictiox as to suejects. sijeeial cases could be conferred upon the county judge, it is equally competent to the legislature to confer it upon the county clerk, recorder or sheriff, or to create a new tribunal for the exercise of such jurisdiction, "(c) It is evident, too, that new courts may be endowed with exclusive jurisdiction in definite classes of cases, and that the words "until otherwise provided," in a constitution, may, with entire grammatical j^ropriety, be taken to qualify whatever succeeds them in the sentence, and the whole be interpreted to mean that the determination in the constitution, both of the number of courts and of their respective jurisdictions, is provisional, and is to last until otherwise provided, and that when the legislature shall choose to act, the iproxisional regime shall cease to the extent indicated by the law-maker. (cZ) But where the right of trial by jurv attaches to a particu- lar kind of cases by the constitution, it is not competent for the legislature to add to a court having no power to empanel a jury the jurisdiction of that kind of eases, without secur- ing, either by special or general law, the right of trial b}^ JiiiT-(^) On the other hand it has been held that a legislature can- not, under a constitution recognizing the distinction between law and equity by the phrase "judicial power as to matters of law and equity," compel a court of equity to refer all mat- ters of fact to a jurj^, any more than a court of law to refer all questions of law to a jury — in other words, that judicial power cannot be taken from a court and conferred ujjon a jury. The power to refer to a jury is matter of discretion with the chancellor at common law, and he may, after taking a verdict, disregard it; and, where a constitution does not change this, a legislature cannot. (/) And this seems to be placed on the principle that a legislature cannot essentially alter or abolish constitutional courts — this only being pos- sible by a modification of the constitution itself — although it can, of course, enlarge the jurisdiction thereof; that is, by (c)Spencer Creek Water Co. o. (c)Tliomas «. Bibb, 44 Ala. 723. Vallejo, 48 Cal. 73. (/)Callahan v. Judd, 23 Wis. 34S (d)State ftf rel. v. Judge, 22 La. An. 567-S. SOURCES OF JURISDICTION AS TO SUBJECTS. 55 annexing statutory jurisdiction to the constitutional. (^y) Tlie essential ^distinction between constitutional and statutory courts is, that the former are not subject to the will of the legislature, so far as their constitutional jurisdiction extends, whereas the latter may be restricted or abolished, as well as created and enlarged, at pleasure, (/i) and may be abolished, even where the constitution makes provision for them, if the creation is left to the discretion of the legislature. And even where a court may be by statute endowed with large and gen- eral powers as to law and equity, yet as the statute made it, a repeal of the statute may destroy it.(i) So a legislature may abolish the writ of ne exeat. (J) And in no case is a legislative grant to be reviewed unless directly unconstitutional, [k) In all cases, whether with a superior or inferior court, a purely statutory authority must be pursued, (/) and it cannot be extended by implication. (wi) But herein there seems to be a distinction, as to matters of a penal nature, between supe- rior and inferior courts. The supreme court of Illinois quote this rule from Espinasse on Penal Statutes: "With respect, however, to statutes giving jurisdiction, a difference must be observed as to the superior and inferior courts. The courts above may have jurisdiction by implication, as in the case of penal statutes mentioned before, such as Rex v. Mallard, ante, folio 9, j)rohibiting any mat.er of public concern under a penalty, but without appropriating it, and which is a debt due to the person, and recoverable in the court of exchequer. That might be sued for in the courts above, though they are not named, but no inferior court or jurisdiction can have cognizance of any penalty recoverable under a penal statute (.9)II:uTis e, Ex'rs, 21 IST. J. Eq. (j)Harker's Case, 49 Cal. 46.5. 426.430; Supervisors*;. Arrighi,.54 (A-)Stondinger v. Newark, 28 N. Miss. 668 ; Heath v. Kent, 37 Mich. J. Eq. 187. 373 ; People v. Hurst, 41 Mich. 328. (^)See 1 Smith's Leading Cases, (//jState V. Smitli, 65 X. C. 370; (6 American Ed.) 1024, 101], and Bank V. Duncan, 52 Miss. 740; Mar- ca.ses there cited; K. li. v. Camp- tin »). Harvey, 54 Miss. 685 ; Keal «. bell, 62 Mo. 585. Juagc, 36 Mich. 332. (/«)Buck v. Dowley, 16 Gray, 558; (jjFcrkins v. Corbin, 45 Ala. 111). Solon v. State, 5 Tex. App. 301. 56 SOURCES OF JURISDICTION AS TO SUBJECTS. by implication. The}' must be expressly mentioned in the statutes themselves, and cognizance given to them in express terms. "(«) It sometimes becomes a matter of importance to determine when the provisions of a statute are mandatory, and when directory. On this, the supreme court of Pennsylvania re- mark : "It would not, perhaps, be easy to lay down any gen- eral rule as to when the provisions of a statute are merely directory, and when mandatory or imperative. Where the words are affirmative, and relate to the manner in which power or jurisdiction vested in a public body is to be exer- cised, and not to the limits of the power or jurisdiction itself, they may be, and often have been, construed to be directory ; but negative words, which go to the power or jurisdiction itself, have never, that I am aware of, been brought within that category. 'A clause is directory,' says Taunton, J., 'when the provisions contain mere matter of direction and no more, but not so when they are followed by words of posi- tive prohibition.' "(o) But even under this definition there is room for inquiry as to what are words of positive pro- hibition. § 69. As to the effect upon pending cases of a repeal of the statute by which a court was established, and from which, therefore, it derived authority, of course, in ordinary cases, there is usuall}^ a provision for their transfer to another tribunal, which thereb}' is invested with jurisdiction by the transfer; when immediately full jurisdiction attaches in the new forum, (jj) And the cause should be transferred without motion of parties. (^) But where such a repeal occurs, and there is a mandamus pending against the judges of the court abolished, the suit cannot be renewed against the successors, and it of course abates, as the judges themselves lose and do not transmit their official character. Thus, in North Caro- lina, while a mandamus suit was pending against the justices of a court, the court was abolished by the adoption of a new («)B()wc'rs V. Groen, 1 Scam. 44. (p)Kruse». Wilson, 79 HI. 233. (w)Bl:i.leii w. Philack-lphia, 60 Pa. (^)Kiiox v. Gurnett, 2S La. An. St. 4(ilJ. 6U1. SOUr.CES OF JURISDICTIOX AS TO SUBJECTS. O ( state constitution, and the proceedings were sought to be revived against the county commissioners, on whom devolved the authority lately held by the abulished court. On this, the supreme court held that "the order that notice issue to the commissioners of the county of Cleveland, to show cause vvhy they should not be made parties to a proceeding by writ of mandamus heretofore directed to the justices of the county, is based on two mistaken ideas : the one, that the writ of man- damus may be revived like an ordinary action — no precedent can be cited to support it; the other, that the commissioners represent the justices of the county, as an executor or admin- istrator represents his testator or intestate. It is true the county court is abolished by the constitution, and may be said to be ' civilly dead ; ' but the commissioners are not its repre- sentatives. The one corporation simply succeeds and takes the place of the other in respect to certain of its functions. The county court exercised both judicial and administrative powers. The former have devolved upon the superior courts, the judges of jDrobate, and the justices of the peace; the lat- ter devolved upon the county commissioners, to whom county affairs, taxes, bridges, roads, poor-houses, and the like, are entrusted. 80 the commissioners are, in respect to adminis- tration matters, the successors, not the representatives, of the county court. It follows, that proceedings against the justices of the county court cannot be revived, either by motion or scire facias, against the commissioners of the county, so as to bind them by the proceeding, answer, etc., had under a writ of mandaiiiKs. The instance of the incum- bent of a benefice, a corporation sole, furnishes an analogy. Proceedings against a deceased incumbent, although it con- cerns the church property, cannot be revived against his successor; it must be by original bill in the nature of a supple- mental bill. 3 Dan. Chan. 13. If a writ of mandamus can be revived at all, which I very much doubt, it cannot be by bill of revivor or motion to revive, but it must be by some original process which my researches have not enabled me to find. We concur in opinion with his honor: 'A suit against 58 SOURCES OF JURISDICTION AS TO SUBJECTS. the justices cannot be renewed against the commission- ers. ••\/-) § To. The rule that statutory authority is to be strictly pursued, is applicable as well to superior courts as to infe- rior; and where an act of congress gave jurisdiction to a dis- trict court of the United States to adjudicate on the title to particular land, it was held that it did not give authority to adjudicate similar claims to other lands. (.sj And so it is usu- ally held that all exceptional modes of obtaining jurisdiction over natural or artificial persons must be strictly conformed to the statute prescribing them, as, for example, in regard to non-residents. (^) All special statutory powers are strictly held, even as to contempts, (m) Nor does an enlarged author- ity extend to pending suits, at least by implication, although I suppose it is comijetent for the legislature to so provide, ex- pressly, that pending suits should be subject to the enlarged power. And so a plaintiff cannot avail himself of a distinct head of equity jurisdiction which the court- did not have at the commencement of the suit;(i;) as, for example, if, when a suit is entered, a court has limited equity powers, but during pendency general equitable jurisdiction is conferred on it.{w) And, moreover, although courts having full equity jurisdiction may sometimes treat a refusal to perform a parol contract partly performed as a constructive fraud, this is not to be done by a court possessing under a statute merelj^ equity jurisdiction "in all cases of fraud;"' because the rule of strict construction prevails, and constructive frauds are therefore not included in the phrase "all cases of fraud. "(,r) And so it is held that under a statutory authorit}" to determine in equity "all suits and matters concerning waste, where there is not an adequate remedy at law," the authority extends, (r)Carson v. Commissioners, 64 {?<).Johasoii ». Voa Kettler, 84 111. N. C. 566. 316. (»)Ural)arger ». Cliaboya, 49 Cal. (»)Sauborn v. Sanborn, 7 Gray, 625. 146. (OIns. Co. V. Owen, 30 Mich. (?f)Buckley v. Dowley, 16 Gray, 441-2; Haywood e. Collins, 60 111. 557. 333. (.cjibid, 558. SOURCES OF JURISDICTION AS TO SUBJECTS. 59 not to such trespasses as courts with full chancery powers will enjoin, but only to cases of technical waste. (?/) And so^ where inferior courts were authorized by law to establish small-pox hospitals, it was held this did not grant the right by implication to impress the private property of citizens for that purjiose.f^). § 71. The authority of common law courts to entertain suits for the recovery of distributive or residuary shares of personal estates from administrators, arises solely by statute, and must be strictly pursued, (a) § 72. In general, a strict construction of statutes is best, at any rate. When implications are admitted, beyond the limits of the most rigid necessity, it is very easy to drift unconsciously away from the meaning of the law-giving power altogether, and establish what was never intended, or even thought of. The supreme court of Massachusetts say : "Equitable constructions according to what may be deemed the spirit of a statute, though the}' may be tolerated in rem- edial and perhaps some other statutes, should always be resorted to with great caution, and never extended to penal statutes or mere arbitrary regulations of matters of public policy. The power of extending the meaning of a statute beyond its words, and deciding by the equity and not the lan- guage, approaches so near the power of legislation, that the wise judiciary will exercise it with reluctance and only in extraordinary cases. "(/j) Judge Hebard, in a Vermont case, very pointedly says : "I am not very well satisfied with the summary mode of getting rid of a statutory provision by calling it directory. If one positive requirement and provis- ion of a statute may be avoided in that way, we see no reason why another may not."(6') I suppose the true prin- ciple of interpretation is to make no changes in the literal (//)Attaquin «. Fish, 5 Met. (a)Duca8se v. Richard, Anthon's- (Mass.) 150. K P. (N. Y.) 192. (a)Markham «. Powell, 33 Ga. (6)Monson v. Chester, 22 Pick. 611. 387. (c)Briggs V. Georgia, 15 Vt. 72. 60 SOURCES OF JURISDICTION AS. TO SUBJECTS. import of statutory language, further than this is necessarily modified by settled legal principles and rules. So far it is needful, in order to have harmony and give all active statutes a co-ordinate operation. The question as to how jurisdiction may be ousted or defeated might appropriately be considered here, as germane to the topics of this chapter. But, as the chapter has become quite extended, we will assign this inquiry to a separate chapter immediately succeeding. DEFEAT OF JURISDICTION. 61 CHAPTER X. DEFEAT OF JURISDICTION. i 73. Jurisdiction of superior courts only taken away expressly or by necessarj' implications. 74. Creating new courts with exclusive jurisdiction. 75. Repeal of criminal law. 76. Effect of bankruptcy. 77. Effect of appeal. 78. Arbitration. 79. Effect of subsequent fact occurring. 80. Giving special powers does not oust general powers. 81. Example of subsequent fact in lunacy proceedings. § 73. It is a settled rule that the jurisdiction of superior courts cannot be taken away, except by express words or necessary implications, («) and, as we have previously re- marked, constitutional powers cannot be taken away by mere legislation. Even where a legislature grants a certain body "full power and authority to ai)prove or set aside an election," it is not to be implied that the usual supervisory power of the supreme court is taken away. Of this the supreme court of Pennsylvania remark : "These words cannot have greater effect than the words 'final and conclusive between the par- ties,' used in a great variety of acts of assembly; and yet it is a well-settled principle that these expressions do not take away the jurisdiction of the court. The legislature, being aware that this is a well-settled rule of construction, would, if they had intended to preclude inquiry, have prevented this court from exerting their superintending authority by exjiress prohibition. "(6) And this matter has even been carried so far as to hold that "where a statute says such a matter shall finally be determined by the quarter sessions only, and that ('/)King V. Canal Co. 6 Eng. L. & (//jCJoiiiinoii wealth v. McCloskcy, E. 24G. 2 liawlo, ?M). •62 DEFEAT OF JUPilSDICTIOX. KG OTHER court sbrJl intermeddle, '' these negative words do not prohibit a certiorari, (r) This apjDears extreme, but the rule herein would probably prevail, and the words be construed only to forbid any other original jurisdiction. However, in Potter's Dwarris, 229, we find this remark quoted from Tindal, C. J. : "Yet, w^iere the object and intent of the statute manifestly require it, words that appear to be permissive only shall be construed as obligatory, and shall have the effect of ousting courts of their jurisdiction;" and the author appends the remark that "in that case, [wherein the rule was thus laid down,] on a full analysis of the statute in question, the courts thought the jurisdiction was taken away." And, I suppose, in all cases a manifest legislative intention will prevail in the courts over the language of a statute, in accord- ance with the principle declared in the same work,- page 231: "The sense and spirit of an act, however, — its scope and intention, — are primarily to be regarded in the construc- tion of statutes; and it matters not that the terms used by the legislature, in delivering its commands, are not the most apt to express its meaning, provided the object be plain and intelligible, and expressed with sufi&cient distinctness to enable the judge to collect it from any part of the act. The object once understood, judges are so to construe an act as to sup- press the mischief or advance the remedy. But yet the •court is not at liberty, even for that purpose, to introduce [into] or exclude words from any clause of a statute, but is bound to construe the words which the clause contains, with reference always to that which appears to be plainly and manifestly its object." Of course, great care is requisite in applj'ing this principle, for otherwise it leads directlj' to judi- cial legislation. Moreover, where the matter of jurisdiction is doubtful as iio any court, the court is entitled to the benefit of the doubt, and will not be ousted by a strict construction ; but where a party in good faith as to the validity of a jurisdiction invokes it in his behalf, it will, in general, be sustained. (ci?) (c)Burgenhofea v. Martin, 3 (d)Stanley v. Barker, 25 Vt. 510. Yeates, (Pa.) -ISO, note. DEFEAT OF JURISDICTION. 63 The word "shall," (imperative,) and conferring exclusive jurisdiction, will be construed to mean "may," (permissive,) and conferring only concurrent jurisdiction, when the literal construction would bring the act into conflict with a constitu- tional provision, (c) § 74. The creation of new courts, with exclusive jurisdiction in a certain class of cases, will oust the jurisdiction already attached in pending cases; at least this is so in criminal mat- ters, and, by parity of reason, I judge in civil matters also. For example, where an act declared "that there is hereby created a court of original and exclusive criminal jurisdiction in all cases of felony and misdemeanor in said counties," etc., it was held to oust the jurisdiction of the district court in cases then pending, (/) and on a rehearing the result was the same. And more especially is this the case where the act provides that immediately on its passage all suits and proceedings, the jurisdiction of which is vested in the new court, shall be transferred, and the other courts divested of all power to make any order in them, except an order of transfer; and this is held to apply to cases where there is a temporary order of injunction existing, (^) notwithstanding the general rule that one court cannot dissolve an injunction granted by another. § 75. And, indeed, the repeal of an act creating an offence discharges all pending indictments for that offence, unless there is a saving clause inserted therein. (//) And so as to civil suits; when a statute conferring that kind of jurisdiction is repealed, without a saving clause, pending suits altogether fail.(i) But this, I think, is unusual legislation. And in criminal cases the principle prevails wliere the jurisdiction is exclusively transferred to another, even an inferior court; 80 that indictments pending fail, there being no provision especially for them.(j) ((?)Burns o. Henderson, 20 111. (/7)State ex rd. v. Judge, 22 La. 265. An. .569. (/)Stuljbs «. State, .39 Tex. 571. (/^Taylor v. State, 7 Blackf. (Ind.) And this is more especially the 93. case in regard to a new constitii- (/)IIunt«. .Jennings, 5 Blackf. 105. tion. Kno.\ v. Gurnett, 26 La. An. (.yjSpriggs v. State, 2 Carter, €01. (Ind.) 75. 64 DEFEAT OF JURISDICTION. § 76. It is held that, under the United States bankrupt law of 1867, a state court loses all jurisdiction of a bankrupt and his estate, even in pending cases, whenever the bank- ruptcy occurs, except in regard to enforcing prior liens on the estate of the bankrupt, (/c) and, perhaps, excepting also plain- tiffs in pending actions should have notice of the bank- ruptcy. However, at the suit of an assignee state courts may aid in the enforcement of bankrupt laws, as by setting aside fraud- ulent conveyances. (') But (at least after notice) all efforts to obtain a lien, and all ordinary proceedings, are to be stayed at once.(m) An assignee may likewise foreclose a mortgage in a state court, (n) or, in general, collect the assets in the state courts. (o) § 77. Where a court has power to certify a case to an appellate court, and makes an order to that effect, it loses jurisdiction until the case is remanded, and any further pro- ceedings, after the order, will be disregarded by the higher court, (_p) the case then standing as if it were ajjpealed. § 78. Although parties may enter into a valid and binding agreement to submit questions in dispute to arbitration, yet public policy requires that such agreement must relate to matters now disputed, or immediately likely to be disputed. "We understand the law to be settled," say the Delaware court, "that a prospective agreement to refer all matters in dispute, which may hereafter arise, cannot be shown as a defence to an action for the recovery of such disputed matter, for the superior courts will not suffer themselves to be ousted of their jurisdiction by the private agreement of the par- ties, "(g) And the Pennsylvania court say : "General clauses providing for the settlement by arbitration of disputes that may arise between the contracting parties are not infre- quently inserted in partnership agreements, leases, and other (A:)Elliott t). .Johnson, 44 Tex. (o)Waite v. Young, Id. 221, Tol- IhU; Boone v. llevis, Id. 384; Han- cott, ,J., dissenting, cock V. Henderson, 45 Tex. 479; (;))ilurry «. Smith, 1 Hawkes, (N". Doe ». Childress, 21 Wall. 643. C.) 43. (Olsett V. Stuart, 80 111. 404. (r/)RandeI «. Canal Co., 1 Harr. (/H)lirutton D.Anderson, 5 S.C.504. 275 ; Pearl v. Harris, 121 Mass. 390. (njBurlingame v. Puree, 12 Hun. 145. DEFEAT OF JURISDICTION. 65 instruments of writing, but they do not take away the juris- diction of the courts. Whether they would be a ground of action should one party, on request of the other, refuse to concur in naming an arbitrator, may be doubted, but cer- tainly a plea of this kind, in nature of a plea to the jurisdic- tion, would not be entertained. It is not to be supposed that parties to such agreements waive the jurisdiction of the ordinary tribunals of the country, unless they expressly include them. Even a nomination of an arbiter, under a submission of existing controversies, may be revoked, and, though the jjarty may forfeit his bond, the jurisdiction of the court remains. It is possible special cases may exist where a court of equity might deem it exj^edient to hold the parties to a tribunal constituted by themselves, but, generally speaking, these clauses are of no avail, and amount only to an empty name.''(r) § 79. It is stated, as a general rule, that where jurisdiction is once lawfully and properly acquired no subsequent fact in the particular cause can defeat that jurisdiction; as, for in- stance, where the amount sued for is within the jurisdiction at the inception of the suit, but by delay and consequent accu- mulation of interest the amount is increased beyond the juris- diction, while the matter is pending, and before judgment. (s) Further, it is declared that if there is any exception to this rule it is when a change in the parties, after suit commenced, is of a nature to work an abatement. And the acceptance of the office of consul, after the commencement of a suit, is not such a change. (i) Nor is the removal of parties from the state after suit is commenced. (m) Nor does dismissing as to a party improperly joined of itself oust jurisdiction, (r;) The loss of the basis of the action does not oust, necessarily. Thus, the supreme court of Kentucky say: "Nor have we any doubt that, as the covenant was in existence, and within the (r)Gray «. Wilson, 4 Watts, 41. (M)Tapley v. Martin, 116 Mass. (s)Tindall «. Meeker, 1 Scam. 139. 275; Upton 9. K. R. 25 N. J. Eq. (i!)Koppell c. Hendricks, 1 Barb. 372. 451. (v)Dickson e. R. R. 81 111. 275. v.l— 5 GG DEFEAT OF JURISDICTION. power of the plaintiff in the action when the suit was com- menced, the accidental destruction of it by burning, pendente lite, did not oust the common law court of jurisdiction, even if it should be conceded that here now, where profert is not essential, an action at law cuuiiot lie maintained on a covenant lost at the date of the writ."(^() And so it has been held in New York that if the lien of a mechanic fails, pending a suit to enforce it, a personal judgment may still be rendered in the action. (.1-) In a criminal case, where one of the judges had occasion to leave the bench for a few moments to hand a paper to a per- son waiting to receive it, and before his return an objection to the admission of a deed was decided, it was claimed, on error, that this circumstance vitiated the proceedings. But the court held that the objection was hardly worthy of notice, and that the action of the judge neither broke up the court nor impaired the validity of the proceedings, since there was still a quorum on the bench to decide questions arising in the cause. ((/) And so, in the same state, it has been decided that if, in a criminal proceeding, one of the judges necessary to constitute a duly organized court is called from the bench to testify as a witness, this does not oust the jurisdiction. (j) But of course the principle would not apply to the absence of a juror, since it requires the whole panel to constitute a quo- rum. And where jurisdiction is limited to sums above a cer- tain amount, and an action is brought in good faith wherein the (M))Blissf). Turnpike, 9 Dana, 265. Texas it has been held that the (a')Darr()w v. Morgan, 65 N. Y. escape of a prisoner, after convic- 333. And see Hunt v. Hunt, 72 N. tion and before sentence, ousts Y. 217, wliere it is declared that jurisdiction, so that if the prisoner jurisdiction is not dependent on is afterwards apprehended he can- the state of facts in any particular not be sentenced on the verdict, case, or the ultimate existence of Brown v. State, 5 Tex. Ct. App. 546. a good cause of action in the plain- The death of a defendant does tiff. The mere granting of a like not ipso facto work a transfer of jurisdiction to another court does the case to the probate court from not oust previous jurisdiction. In a court of ordinary jurisdiction, such case the grant is construed to Bussy & Co. v. Nelson, 30 La. An. 25. be that of a concurrent jurisdiction. (//)TuttIe v. People, 36 N. Y. 440. Hays V. McNealy, 16 Fla. 40y. In (z)tState «. Dohring,59 N. Y. 374. DEFEAT OP JURISDICTION. 67 amount is found to be below the limitation, tins fact will not in general oust the court from its jurisdiction, whether it be ex cu)itractu{(i) or in tort. (6) (See chapter on Values.) In the case of a vacancy in the office of municipal judge, the insertion of the name of the recorder of the court, on whom the duties devolve during vacanc,y, in a warrant as a witness, will not deprive him of jurisdiction, since in such cases, otherwise, "jurisdiction might be the creature of a fiction. "(c) An incidental question concerning the title to land does not oust the jurisdiction of a court forbidden to try titles, although it has no jurisdiction when there is a direct and distinct issue of title made by the pleadings, since, in that case, the matter of title is the foundation of action, at least in part. So if suit be brought on a promissoiy note, and the defence is that the note was given for land to which the plaintiff' had no title, and for which he had failed to make a deed, this does not oust jurisdiction. (t:?) The prohibition re- lates to cases in which the purpose of the action is to recover the land or settle the question of title, (e) On this principle it is that a plea to the jurisdiction of the circuit courts of the United States, on the ground of citizen- ship, must allege that the parties were citizens of the same state when the action was commenced, and not that they afterwards became so,(/) And, also, in order to have a case transferred to the United States courts, under the act of 1867, it is requisite that the ground should not be that the parties were citizens of different states at the time the motion is made for a transfer, but at the time of commencing the suit.(^) The necessity of this rule is obvious, for otherwise the jurisdiction of courts could be trifled with at will. Of course a proper removal of a cause to the United States courts at once stops proceedings in the state courts. (/<) (ajSpafford v. Richardson, 13 Vt. (e)Macy v. Alley, 18 Ala. 12s ; 226. Ohse v. Bruss, 45 Wis. 442. (6)Waters v. Langdon, 16 Vt. 570. (/)Mollan v. Terrence, 9 Wheat. (f)Wills V. Whitlill, 4:3 Me. r.47. 539. {d)liogQrs V. Perdue, 7 Blaekf. (i;)Tapley«. Martin, 116 Mass. 27li. 303; Ilawey v. Dakin, 12 Ind. 481. (A)I)urham v. IS. L. I. Co. 46 Tex. 182. 68 DEFEAT OF JURISDICTION. The rule does not apply to cases of attachment, where the proceedings are properly commenced, but there is a faO- ure to give the statutory notice within the prescribed period. This failure has the effect of destroying the jurisdiction of the court over the pending case, and a subsequent notice will not restore it so as to preserve the lien of the attachment. (i) § 80. The fact that a private act of a legislature by its terms provides that the judge of a county court may remove a particular nuisance, is held not to imply that a circuit court is thereby ousted of its usual jurisdiction to abate the nuis- ance by indictment. (j) At the most, the act must be con- strued to give a concurrent jurisdiction. § 81. Where a person became a lunatic, and conservators were appointed according to law, and began proceedings in chancery to subject his estate to the payment of his debts, and while these proceedings were pending the lunatic recov- ered his reason and appeared in court, asserting the recovery, and moving thereon to set aside all that had been done in the matter, it was held the subsequent recovery did not oust the jurisdiction previously acquired. (A-) (/jMillarv. Babcock, 29 Mich. 527. (A;)SaIter v. His CreditorB, 6 Bush. 0')State V. Bell, 5 Port. (Ala.) 377. 630. PARTIES. 69 CHAPTER XX PARTIES. i 82. " Day in court " — notice. 83. Bunimous. 84. Fraud on party defendant. 8.5. Party in court bound to take notice of the proceedings. 86. Conferring personal jurisdiction by appearance. 87. Non-residents. 88. Notice as to non-residents. 89. Foreign corporations. 90. Equity jurisdiction from residence. 91. Record parlji gives the jurisdiction. 92. State as party. 93. Consuls. 94. Indians. 95. Non-resident plaintiffs. 96. Officers of U. S. government. 97. Service and return statutory. § 82. It is imperative that any person to be affected by the action of the court should, when possible, "have his day in court," and, therefore, have personal notice of the pro- ceeding ; and, in no case, can a personal judgment be entered without this. And Liringsfon, J., in a New York decision, declared that "a sentence obtained in defiance of the maxim audi alteram pcwtem deserves not the name of judgment. "(a) The court of Maine say : "In a suit brought in a court of common law a service upon the person or persons adversely interested is essential ; without this, in some mode recognized by law, the court cannot proceed, and if, inadvertently, a judgment should be rendered, it would be a nullity, or would be reversed on proper proceedings. Before a conclusive judg- ment can be rendered, which can in any manner affect another party in the most trivial suit, that party must have legal notice of its pendency. "(7>) When a court acts without (a)Hitchcock «. Aiken, 1 Caine.s,473. (ijDavis, Ex parte, 41 Me. .59. 70 PAKTIES. jurisdiction of the subject or the person, its proceedings are not merely erroneous, therefore, but wholly void, and may be attacked in a collateral as well as in a direct action.(c) Bron- son, C. J., in a New York case, boldly declared, in most emphatic language, that "the state must not boast of its civilization, nor of its progress in the principles of civil liberty, where the legislature has power to provide that a man may be con- demned unheard," even where he is jointly liable, and the other defendant was served with process. (rf) But one of the judges dissented from the opinion of the court, on a ground which he fortified most ably with authorities, namely, that where there is but one cause of action, whether it be against a single person or many, the original cause of action is merged in a judgment, and that neither the matter nor jDarties can be severed, unless the cause of action is joint and several; which, for example, is not the case in actions against partners. There is no doubt, I supj)0se, that where interests are absolutely inseparable, as partnerships may be, service on one defendant may justify" a judgment merging the entire cause of action, so that no action could be sustained afterwards against either of the defendants on the original promises, but only an action of debt on the judgment. In a joint and several action, however, the several service of process would be required on a judgment against all the co-debtors. And it is so where an action is brought individually against the members of a firm, even if the action might have been brought against the firm itself.(e) And, in a suit against a firm, service on an alleged partner will not give jurisdiction of the person of another alleged partner, if it turns out that no partnership existed between them.(/) The principle is that, "if requisite notice has not been given to, or process has not been served upon, a party^ the court has no more authority to adjudicate upon his rights than a stranger (f)Barnes v. Harris, 4 Comst. 379. (c)Weaver v. Carpenter, 42 la. (ri)Oakley v. Aspinwall, 4 Comst. (/)Nixon v. Downey, 42 la. 78. 521. See dissenting opinion, and 343. cases therein cited. PAETIES. 71 or a private individual. And all that the court does, all its findings, are absolutely void — as well the finding that the notice was given or j)rocess served as the others;" although such finding in regard to notice or process is j^fima facie evi- dence of the fact(^) in a direct attack, and in a collateral attack is so far conclusive that it can, in most if not all the states, be contradicted only by other facts of the record, since a record imports absolute verity in all collateral proceed- ings, (/i) And after the term at which a judgment is rendered it cannot be attacked by a motion to set it aside, supported by affidavits, because of its absolute verity, (i) And, moreover, where a statute prescribes the mode of ob- taining personal jurisdiction it must be strictly pursued, or the jjroceeding will be a nullity, whether in a sujjerior or in- ferior court, and as utterly void, indeed, as if it undertook to adjudicate where it had no jurisdiction of the subject-matter. But in Minnesota it has lately been held that if a statute pro- vides that "no summons shall issue until complaint be filed," and also provides that all pleadings shall be verified, the lat- ter provision is not jurisdictional, since a verification is not, properly speaking, a part of the pleading to which it is at- tached. McNath V. Par.ions, unreported. And the principle applies to a probate court ordering a sale of lands when in- fant heirs were not represented by a guardian ad litem. (j) A guardian ad litem cannot enter an appearance for minors without service of process. (A) It is, however, held in Illinois that where there is service on minors the failure to appoint a guardian ad litem is error, but does not render the judgment or decree absolutely void, (7) such appointment not being re- garded as jurisdictional. And where a statute requires service of notice upon an in- dividual it means personal service, unless some other is indi- cated. And if the statute requires personal notice of a vil- lage ordinance to be given owners of lots to be afl'ected by (,<7)Gou(lyv. rial], 30 111. 116. (j) Bloom v. Burdlck, 1 Hill, (/(jLawver v. Langhans, 85 111. 139. 138; Harris «. Lester, SO 111. 307. (A)Cliamhers v. Jones, 72 111, (i) Humphrey ville v. Culver, etc., 275. 73 111. 487. (OGage v. Schroder, 73 111. 44. 72 PAKTIE3. the ordinance, a notice by mail will not suffice, even if it reaches the party. And so, if a statute requires that notice of a village ordinance shall be published, such publication of the ordinance will not suffice, without a notice that it is an ordi- nance duly passed. (m) A statutory requirement of service means a summons in law suit.(u) And even as to a non- resident a statute may imperatively require the mailing of a summons, (o) The rule in equity is the same, namely: "The power of the court to proceed to a decree in the absence of parties depends on the nature of their interest and the mode in which it will be affected by the decree. If they are only passive objects of the judgment of the court, or their rights are incidental to those of parties before the court, a complete determina- tion may be obtained. But if they are to be active in j)er- forming the decree, or if they have rights wholly distinct from those of the other parties, the court, in their absence, cannot proceed to a determination against them, "(p) § 83. The usual mode of giving notice is by summons, served by an officer of the court, and duly returned into tiie the court. The date of the commencement of the suit is held to be the date of the writ ; but actual jurisdiction is, of course, not acquired until service is made. And, where a court has enlarged jurisdiction as to subject-matter, a service is wholly void which was made of a writ issued between the passage of the enlarging act and the time prescribed for its taking eff'ect; it being held in such case that the suit was commenced be- fore the court had any right to take jurisdiction. (g') Whether this could be cured by subsequent consent of the parties is not deteimined; but I judge not, under the inflexible rule that, as to subject-matter, consent cannot give jurisdiction. This (;7i)Rat]iburn?x Acker, 18 Barb. •S'^S. or there is no personal jurisdiction (rt)Smitli V. Wells, 69 N. Y. 600. acquired thereby. Kyle «. Kyle, 55 ('>)[bid. Ind. 387. And the return of the {j>)C"ole;nan"s Appeal, 75 Pa. St. officer must specify the name of 457. the defendant on whom service is (f/)Wheatland v. Levering, 10 had if the name does not appear in Gray, 16. Service of summons the summons. Brooks ». Allen, 62 must be by an authorized person, Ind. 401. I PAr.TiES. 73 would seem to lead to the logical deduction that an unau- thorized institution of suit could not afterwards be in any manner legalized, but proceedings would of necessity have to be begun anew. It is even held doubtful, indeed, whether a statute expressly designed to be retroactive upon proceedings in court can be allowed to have that effect in operation. (r) § 84. It is a settled principle, however, that a court will not sanction any fraud or misrepresentation or trickery in bringing a party within the jurisdiction ; and so, where one is induced by a false statement to come within the reach of process, and then is personally served, the service will be set aside on motion. (s) And, also, where a non-resident comes in good faith within the state to testify as a witness, and for that purpose only, it is usually held that he is exempt from the service of a summons, and if one be served it will be set aside. (i) And this is held to be of great practical importance, inasmuch as "princiijles of public policy require that no unnecessary obstacles should be interposed to prevent the attendance and examination of witnesses in the presence of the court and jury." § 85. When a party is once in court by any legal means he is then bound to take notice of all subsequent proceedings in the cause. (») But it is not so where there is an actual dis- continuance; as, for example; where two defendants were summoned before a magistrate, and appeared on the return day, whereas both the magistrate and the plaintiff were absent, so that no proceedings were had in the case. But three days afterwards one of the defendants, in presence of the other, and also of a witness, in the absence of the jus- tice, indorsed on a note found in the office of the justice (being a joint and several note of the two defendants) his individual confession of judgment, and on the same day the justice rendered judgment thereon in favor of the plaintiff. (r)Warren Mamif. Co. «. Ins. Co. must be voluntary. People v. 2 Paine C. C. .",17. ^ Judge, 40 Mich. 729. (»)Carpenter v. Spooner, 2 J^andf. (/)-^eaver v. Robinson, 3 Duer, (IT. Y.) 717; Wanzer v. Bri,2;lit, 52 (N. Y.) frl:',. 111. 41. (M)Thonia3 v. Alford, 20 Tex. And in all eases an appearanec 492. 74 PARTIES. Execution having been levied on the property of the defend- ant who had not joined in this confession he brought trespass against the justice, and it was held that when the judgment was rendered the justice had no jurisdiction over this defend- ant — the summons having spent its force on the return day — so that the parties were out of court and the cause discon- tinued, and therefore the justice was liable in the action, (r) § 86. However, in the absence of service of process a party may give personal jurisdiction to a court either by an actual or virtual consent. (w) And the principle applies to an im- (r)C'lurk «. Holmes, 1 Doug. 391. (/fjMcCormick v. R. R. 49 N. Y. 3U9. Where there is a voluntiiry ap- pearance, for the general purpose of defence, there is, of course, no necessity of a summons. And the appearance may be l)y attorney. Wasson v. Cone, 86 111. 46. If an appearance is made specially for the purpose of objecting to the ju- risdiction, the motion must be re- stricted to this specific purpose or else it will confer general jurisdic- tion in the case. Aultman & Tay- lor Co. V. Steinau, 8 Neb. 109. A motion to change the venue con- fers such jurisdiction. Taylor «. R. R. Co. 68 Mo. 397. And more especial 1}%. if there is a plea entered as to the merits, it is too late after- wards to raise the question of juris- diction of the person. Gott v. Brigham, 41 Mich. 227. And it has even been held that if one appears by attorney or in person to object to the jurisdiction he cannot after- wards object to the sufficiency of the summons or notice. Church v. Cro.ssman, 49 la. 444. And an ap- pearance may be made hya, written memorandum of the defendant, staling that he waives notice and makes a voluntary appearance. Shaw V. Bank, 49 la. 179. And so a party who voluntarily intervenes in an action cannot afterwards deny the jurisdiction of the court therein. Jack et al. v. R. R. 49 la. 627. In all cases the objection must be raised promptly. Dake v. Miller, 15 Hun. 356. However, where the objection is not as to personal jurisdiction, but is to the effect that the court has not juris- diction of the action, on the ground of venue, or any other ground go- ing to the essential jurisdiction of tlie cause, a general appearance is not a waiver. Wlieelock v. Lee, 74 N. Y. 495. On the general prin- ciple tliat consent cannot give jurisdiction of a subject-matter, parties cannot waive the want of jurisdiction so as to make experi- mental ca.ses for the courts, (Geor- gia, etc., Loan Association v. Mc- Gowan, 59 Ga. 811,) for waiver per- tains alone to jurisdiction of the person. Where jurisdiction depends on the "residence" of a person, the word "residence" is to be regarded as denoting permanence, and not a mere temporary stay in a particular locality. Bank «. Reed, 45 Conn. 391; Church v. Grossman, 49 la. .445. A minor cannot make an ap- pearance so as to waive service of process, or legal notice. Bonnell ». Holt, 89 111. 72; Carver e. Carver, 64 Ind, 196; Helms v. Chadbourue^ 45 Wis. 61. PARTIES. 75 proper change of venue. (.c) And where suit is originally l)vougbt in a wrong county, a failure to make objection will operate as a waiver; as where a statute requires suit on an official bond to be brought in the county where the bond was executed. (^) And objection must be made in apt time.(5') In all ordinary cases a failure to object, and taking steps in a cause, waives the right to object. (<(.) And for tliis purpose* too, a general appearance will suffice. The principle under- lying this is, that one may waive a personal privilege in all cases where public policy is not contravened thereb3^ Other- wise a defendant may submit his person to the jurisdiction of any court. (/>) Thus, where a defendant apxDeared, and on. motion obtained a change of venue to a court not then hav- ing equity jurisdiction, and then, after equity jurisdiction had been conferred upon the court, demurred, because of the want of equity jurisdiction when the change of venue was made, it was held that his general appearance precluded his objecting to the jurisdiction to wliich he had voluntarily trans- ferred the cause, and where, until filing the demurrer, the cause had been pending as a law action, though properly be- longing to the equity side of the court. And especially as the jurisdiction had been obtained before the filing of the demurrer, (c) And so, where a defendant appeared and filed a set-off, and then moved to dismiss for want of personal jurisdiction, it was held that his motion came too late. (J) And thus, after a general aj)pearance, (with the exception I have intimated above,) one cannot submit himself to the ju- risdiction, and then object that the suit ought to have been brought in another county. (c) And if a defendant appears in court to give notice of an appeal, he cannot afterwards be allowed to deny the jurisdiction over his person. (/) Where (.;■) Carpenter «. Shepardson, 43 (i)Campl)ell v. Wilson, 6 Tex. Wis. 406. 392. (.y)('l()man«. Staton,7S N. C. 235. (c)Polk Co. «. Hierb, 37 la. 362. (OMcMinn v. Hamilton, 77 N. C. (rt)Thornton v. Leavitt, 63 Me. udO. 38'). (^<)Eitel V. Bracken, 38 N. Y. Su- (f)Brown v. Webber, 6 Cash. .''.63. perlor Ct. 13; Ward v. Roy, 69 N. (/)i^'t:e v. Iron Co. 13 Ohio tSt. Y. 96. 56i. 7G PARTIES. venue is changed by agreement, an appearance to the action afterwards, in the court to which transfer was made, waives objections as to the jurisdiction and the regularity of the change of venue, (r/) But where a defendant appears specially to contest the jurisdiction, the appearance does not waive the objection ;(/i) although such an appearance must be understood to be made upon application to the court, in New Hampshire. (i) Probably leave would be implied under the general practice. Even an unauthorized appearance by an attorney will bind defendants so far that they cannot question its validitj^ collat- erally, (ji) This seems to be on the ground that attorneys are officers of the court, and prima facie their acts are pre- sumed regular. There are exceptions to the general rule of consent as to personal jurisdiction; as, for example, where, to subserve public interests, a bank corporation is prohibited from con- senting to jurisdiction out of its county, (/«;) or where a statute positively requires an action against an officer to.be brought in the county where the cause of action arose. (Z) § 87. It is held to be a principle of the common law that any non-resident defendant voluntarily coming within the jurisdiction may be served with process, and comjjelled to answer. (m) Where the jurisdiction, however, depends upon the residence, there must usually be an averment of the resi- dence. (?i) In New York it is held that the courts have jurisdiction of actions for torts as to property, even where the parties are non-resident, and the torts were committed out of the state, if the defendant is served with process within the state, (o) But Gierke, J., very vigorously dissented in the case, and, I judge, with good reason. {,7).Vnrora Fire Ins. Co. v. .John- (^-jCentral Bk.e.Gibson,llGa.459. -son, 46 Ind. 321. (/)Cowen v. Quinn, 13 Hun. 344. (/i)Branner «. Chapman, 11 Kan. (/«)Semple V. Anderson, 4 Gilm. 121. ([]!.) -,.59. (OWrioht«. Haywanl, 37iSr.H. 19. (n,)riaddock v. Waterman, 11 111. 0') eed V. Fratt, 2 Hill, (S. Y.) 470. €6; Rust «. Frotliingliam, Brecse, (^)Latoui-ctte t. Clark, 45 Barb. oua,^t/e proceedings. And the reason is, that they invoke the jurisdiction and aid of the court. Even where the state is interested in a suit, but is not a record party defendant, the jurisdiction may be main- tained, notwithstanding the rule that a state cannot, except on consent, be sued in its own courts. (m) § 92. Although it is a settled rule that a state cannot l)e sued in its own courts, yet, where it brings suit, as it is enti- tled to do, in a civil action, the defendant has the right to bring in a set-off, although this is in the nature of a cross- suit. (n) However, a state may consent to be sued in its own courts, as the United States has done in its court of claims. § 93. A consul may sue in the state courts, although not liable to be sued therein. If sued therein, however, he ma^^ waive his privilege, not only expressly, but also by prosecut- ing an appeal to the supreme court to reverse the decision below, (o) § 94. It is held that Indians may sue or be sued in the state courts. (jj) But where there is a statute prohil)iting this, of course it is otherwise, as in the state of New York, ((/) where an Indian, if sued, need not plead his exemption. This regulation rests on the idea that the tribes have inde- pendent sovereignty; an idea, the prevalence of which has (^•)Hendersoii?). Kissam, STex.54. • ((?)Koppel v. Heinrirhs, 1 Barb. (Z)Gill V. Stebbius, 2 Paine C. C. 452. 417. (;))S\vartzel v. Rogers, 3 Kaa. {m) Michigan State Bank v. Hast- 377. ings, 1 Doug. (la.) 237. (7) Hastings v. Fanner, 4 Corns t. (?i)Coramonwealth v. Todd, 9 295. Bush, 714. PARTIES. OO wrought vast mischiefs in our governmental dealings with those tribes. Their tribal relations ought never to have been recognized as a political fact. § 95. In New York, the question arose whether a court has power to arrest proceedings in behalf of a non-resident plain- tiff, in order to compel him to appear and be examined as a witness in the cause, at the demand of the defendant. It was held — but by a divided court — that the power did not exist, on the ground that "the power of the court is limited to the territory of the state, and in the absence of any statute undertaking to authorize a service out of the state, the ser- vice of the judge's summons, and of the notice, in the state of Massachusetts, must be deemed to have been utterly void and in8tfectual."(r) § 9o. Officers of the United States government are liable to be sued in the state courts except in such eases as are espe- cially exempted hj the national constitution(.s) and acts of congress. § 97. The manner of actual service and return is purely statutory, and the general rule is that statutes prescribing such manner must be strictly complied with, being mandatory, and not directory; with some exceptions, however, which we have previously noticed, based on the principle that form must give wa}^ to substantial justice when necessary. Accord- ingly, officers are allowed to amend their returns when this can be truthfully done. (7')Appletoa«. Appletou,5013arb. (s)Crawford. v. Waterson, S Flor, 486. 474. 84 CONFEDERATE SOLDIERS. CHAPTEE XII. PARTIES (continued) CONFEDERATE SOLDIERS. 5 98. Judicial results of the civil war. § 98. In the preceding chapter the general rules relating to parties passed under review. But our civil war gave rise to many questions of a somewhat peculiar nature, although resolvable, in the main, by the application of settled rules. The rights of Confederate soldiers under judicial proceedings were exhaustively adjudicated in an elaborate case in Ken- tucky, (a) in which Judge Lindsay delivered THE OPINION OF THE COURT, "B. G. Thomas, a citizen of Kentucky, residing in the city of Lexington, some time in the early part of the year 1862, became embroiled in an unfortunate difficulty with a soldier of one of the regiments of United States troops then sta- tioned at that place, and was finally comi^elled, in necessary self-defence, to kill the soldier. The act was held to be excusable by both the civil and military authorities, but the comrades of the soldier were so much incensed that they openly announced their intention to avenge his death, and made repeated attempts to execute their threats. Their offi- cers either could not, or would not, restrain them, and it eventually became necessary that Thomas should virtually abandon his business to escape the impending danger. "While affairs were in this condition the southern army, under General Bragg, advanced into Kentucky, and occupied the city of Lexington. During its occupation Thomas re- mained at home; but a day or two after it was abandoned by the retiring Confederates, and before the Federal army (a)Thomas v. JNlahone, 9 Bush, 114. CONFEDERATE SOLDIERS. 85 resumed possession be started south, and some time in the month of November, 1862, be, being then in the state of Ten- nessee, joined the Confederate army. "On the fifth of November, 1862, Rufus Lisle, a creditor of Thomas, brought his suit in the Fayette circuit court, and sued out orders of attachment against bis property, on the grounds that he had left the county of his residence for the purpose of joining, and bad joined and entered into, and was then in, the service of the so-called Confederate States, and that he bad removed, and was about to remove, a material part of his property out of Kentucky, not leaving enough to pay bis debts. The real and personal property of Thomas, situated or found in Fayette county, was shortly thereafter seized by the sheriff. "On the fourteenth of December, James and Mansfield also filed their suit to enforce the collection of certain notes held by them as assignees of Jackson, the payment of which was secured by a vendor's lien on a tract of about one hundred acres of land, situated near the city of Lexington, and pur- chased by Thomas from said Jackson. They also procured an order of attachment upon the alleged ground that their debtor bad voluntarily left the county of bis residence and gone within the lines of the Confederate army, and there vol- untarily remained for more than thirty days. In both these suits the land in question was attached, and in each of them orders of warning against the absent defendant were made. "In February, 1863, the two suits were consolidated and a judgment rendered, directing, amongst other things, the sale of so much of the tract of land already mentioned as might be necessary, the proceeds therefrom to be ap- plied, first, to the satisfaction of the lien notes held by James and Mansfield, and then to the payment of such bal- ance as might remain unpaid on the claim of Lisle after the sale of the personal property. Under this judgment the en- tire tract was sold, the appellee, Mahone, purchasing it for the sum ot $10,613. The sale was confirmed, and with the sanction and approval of the court a conveyance to Mahone 86 CONFEDEKATE SOLDIERS. was executed by the slierifif (who acted as the court's com- missioner) on the seventeenth of June, IS 64. "Shortly after the termination of the civil war Thomas returned to his home, and on the twenty-first of April, 1870, instituted this suit, seeking to have the judgment, and sale, imder which Mahone claims title to the land, declared void, the land restored to his possession, and judgment for such amount as might be found due him after an account for rents and improvements should be rendered. He alleges that at the time of the proceedings resulting in the sale of his land he was kept away from his home, and prevented from making defence, by the lawless condition of the country, and the ina- bility of the civil and disinclination of the military authorities to protect him from threatened assassination; that Xfahone, the purchaser of his land, had contributed to bring about the condition of lawlessness then prevailing, and was thereby indirectly responsible for his (appellant's) enforced absence; that the levies of the orders of attachment were, as matter of law, void, because of the failure of the officer to comply with the law in making them, and because the land was at the time in the actual possession of the military authorities of the United States, and, therefore, not subject to seizure by the officer of the state court; that the military authorities intim- idated bidders, and prevented competition at the sale; that this fact was a matter of public notoriety, and was well known to the purchaser, who took advantage of the circumstance to bid in the land at greatly less than its actual value; that the premises were in the actual possession of the military when sold; and, finally, that the judgment was void for want of jurisdiction in the court — it not having power, because of its belligerent character, and by reason of his absence within the lines of a hostile government, to bring him before or into court by constructive service. "No appeal was prosecuted from the original judgment, confirming the sale of the land, nor did appellant, within five years after either of these judgments, enter his appearance, and move for a retrial of the issues settled by either, as CONFEDERATE SOLDIERS. 87 authorized by section 445 of the Civil Code of Practice. Nor is this action in the nature of a bill of review. It is, in every essential, a collateral proceeding, seeking no correction of errors, and asking no relief, except that the original proceed- ings shall be absolutely ignored. (6) Such being the case, it is not necessary that we should direct our attention to any of the grounds set up in the petition, which wall not of them- selves, or in connection with others, authorize us to con- clude that the judgment or the sale, or both, were and are utterly null and void. "That, in 1862, the civil authorities of Fayette county were not able to jarotect appellant from the soldiery, and that the military officers did not afford him protection, is suffi- ciently proved; yet the hostility toward him seems not to have extended beyond the friends and comrades of the man who had been killed, and it is certain he remained at home, notwithstanding the apprehended danger, until the command to which these soldiers belonged was compelled to withdraw from Lexington by the advance of the southern troops. He started south at a time when he was in no immediate danger, and when he hcA no sufficient reason to anticipate the return to Lexington of the hostile soldiers, if, indeed, they ever did return. But, even if prudence diclnted that he should secure his personal safety by leaving his home, he could have secured this security as well within as without the Federal lines. We are constrained to conclude that while he would have preferred to remain at home, if he could have been assured that he would be permitted to do so without further molestation, it was his sympathy for the southern cause, and not 'fear of the soldiery, that induced him to go south. "Appellant's absence within the Confederate lines was not that character of enforced absence which, in the case of Dean v. Nelson, 10 Wall. 158, was held by the supreme court of the United States to render void the order of publication (^')Certainly this is an inadvertent validity of the judgments, and has declaration of the court. How can no other view than to set aside the that be a "colhittrnl proceeding," judgments and all proceedings un- ■which is a direct assault on the der them? I cannot see. 88 CONFEDERATE SOLDIERS. b}' which the civil commission, sitting at Memphis, attempted to acquire jurisdiction of the persons of Nelson and his wife. Thej^ had been expelled from the Union lines by the military commander, and were not allowed to return, and, therefore, could not have obeyed the order of publication, even if it had been brought to their notice. "There is nothing in the record before us authorizing the conclusion that Mahone was resj)onsible for the lawlessness complained of by Thomas, nor that he personally contributed to bring about that disregard by the military of law and order which it is insisted prevailed in Lexington, in 1862, and afterwards. This court cannot recognize and act upon the idea that there is a general equity, growing out of the disturbed condition of KentucKy during the iate civil war, which converts into trustees those who purchased property at judicial sales during that period. To uphold such a doc- trine would be to practically reopen all the litigation settled by the courts during that unhappy epoch of our country's history. * * * "We are of opinion that the premises were sub- ject to attachment notwithstanding the Federal government had upon them at the time a military encamj^ment. The occupation of the military was merely temporar}'. The gen- eral government asserted no claim to the land actually occu- pied, and had done nothing indicative of an intention to seize and permanently hold the premises in the furtherance of military operations. Although the officer of the state could not force his way within the guard-lines of a military encampment, yet the occupation of the army was not so exclu- sive as to prevent him from doing such acts as the law required to be done to put the court in constructive possession of the land, and this was all that was necessary to perfect the attachment liens. If it is true, as charged, that Warner, to whom the deputy sheriff delivered copies of the orders of attachment, was a Federal officer, it is equally clear that he recognized the right of the deputy to make the levies, and, it seems from the testimony of appellant's witness, (Merrill,) held p jssession of the dwelling under the officer of the state CONFEDERATE SOLDIERS. 89 court, and surrendered it to the officer at the decretal sale. The seizure by the state court did not interfere with tho encampment of the Federal troops and the concurrent posses- sion of the state court, and the troops were in no wise incon- sistent with the rights of either. We do not regard the tem- porary encampment established on appellant's farm as such a possession by the Federal government as to compel the pro- cess of the state court to pause until the encampment was discontinued. There is no analogy between the facts involved in this and in the cases of Harris v. Denny, 3 Pet. 292, and Amy V. Supervisors, 11 Wall. 138. * * * "The only remaining questions necessary to be noticed are — First, could the Fayette circuit court entertain jurisdiction of, and render judgment in, an action prose- cuted against Thomas while he was a soldier in the Confed- erate States army; and, second, did the orders of warning sued out against him have the legal effect of constructive service of process? "It does not follow, because appellant was at the time a soldier in the army of a belligerent power, and that all un- licensed communication with him by the people of the states adhering to the Federal Union was inhibited, not only by the laws of war, but by express statute, that resident creditors might not sue him in the courts of this state, and subject to the payment of their debts such of his property as might be found within the local jurisdiction of the court in which he was sued. The right of resident creditors to so proceed against parties indebted to them, residing within the lines of this hostile power, and held to be public enemies by reason of their participation in the southern movement, was recog- nized by the Federal congress in the act of March 3, 1863, (2 Brightley's Digest, 1238,) providing for the seizure and confiscation of the propert}^ of such persons. In the case of Crutcher v. Herd and Wife, 4 Bush. 362, this court held that a proceeding by a Kentucky creditor to enforce his lien on land situated in this state was not interdicted, notwithstanding the existence of the war, and the residence of the debtor within the Confederate lines. And in the case of Biirnam v. 90 CONFEDERATE SOLDIERS. Comiiionweidth, 1 Duvall, 210, an act of the legislature author- izing suits against the members of the provisional government of Kentack}^ for the recovery of public revenues seized by them or those claiming to act under them, and the rendition of personal judgments upon constructive service, was declared to be liable to no constitutional objection, although it was applied to persons whose absence from the state within the Confederate lines was as notorious as was the additional fact that they were engaged, when the act was passed, (March 15, 18(33,) in giving active aid and encouragement to the hostile government of the south. If the state could authorize such proceedings in its own behalf, without contravening the war policy of the general government, or infringing upon its war powers under the Federal constitution, it is clear that it could provide the same, or similar remedies, for its citizens. Such has all the while been the opinion of this court, as is mani- fested by its action in the cases. 2 Duvall. 288, 480 ; 1 Bush. 4G7 ; 2 r3ush. 201 ; 4 Bush. 498, and numerous others. Even if a citizen of Kentucky, who joined the Confederate army, became thereby invested with the character of an alien enemy, as is insisted by appellant, it is by no means clear that his property in Kentucky could not be lawf ulh* seized b}- its courts, and subjected to the payment of his debts. The supreme court of the United States, upon the authority of a case in the English court of exchequer, cited in the case of Albrecht v. Snssnum, 2 Vesey & Beavens, 324, and the doctrine enun- ciated in Bacon's Abridgment, title 'Alien, D,' and in the 53d section of Story's Equity Pleadings, decides, that 'whatever ma}' be the extent of the disability of an alien enemy to sue in the courts of the hostile countrj^ it is clear that he is lia- ble to be sued.' McVeigh v. U. S., 11 Wall. 259. The juris- diction of the courts of Tennessee to sell the lands of one of her citizens, who had left his home and become a participant in the war being waged against the United States by the Con- federates, was directly called in question in the case of Lnd- loiv V. Ramsay, 11 Wall. 581, and upheld by the supreme court. "The judgment in the case of Dean v. Nelson was declared CONFEDERATE SOLDIERS. 91 void because the defendants were uot permitted by the mili- tary commamler to return to Memphis and make defence. Under the circumstances, the order of publication was held to be an idle form, not on account of Nelson and his wife being public enemies, and therefore not liable to be sued, but because the militar}- would neither allow them to see nor ta ^bey it. So far as the civil or military authorities in Ken- tucky were concerned, Thomas could have returned and resumed his status as a non-combatant citizen at any time ; but he did not choose to do so upon the terms prescribed. We are satisfied that the power of the courts of the states adhering to the Federal Union to entertain jurisdiction of suits against such of their citizens as joined in the Confeder- ate army is upheld by the decided weight of authority. * * * "As persons serving in the Confederate army, or adhering to the Confederate cause, could be lawfully sued, the constructive notice necessary to give the courts jurisdiction to render judgments in suits instituted against them was a question of legislative discretion, and not of power. As the act [authorizing constructive service] was intended to apply to belligerents, to persons who were within the lines of the public enemy, the fact that attorneys appointed to defend could not lawfully communicate with them does not render void the judgments in such actions. * * * "The warning orders, resulting in the judgments by virtue of which appellant's land was sold, were based upon the alleged ground that he had departed from the county of his residence and voluntarily gone and continued within the military lines of the Confederate States. The evidence estab- lishes the truth of these allegations. It does not matter that Thomas remained at home until the advance of Bragg's troops brought him within the lines of the invading army. He con- tinued a non-combatant citizen of Kentucky until the confed- erates left Lexington on their retreat from the state. Whether his remaining at home until the day after the southern troops had retired brought him again within the advancing lines of the Federals, or whether his home continued constructively "within the southern lines until the Union troops actually re- 02 CONFEDERATE SOLDIERS. occupied the country, we do not deem it necessary to decide. He left his home when there was no public enemy present to interfere with the execution of the process of the courts, and, by voluntarily continuing absent and within the hostile lines, he forced his creditors to resort to the remedies provided by a law enacted long before he was in anywise connected with the Confederate army. His action brought him within the letter as well as the spirit of the law, construing it strictly and confining its operations within the narrow limits insisted upon by his learned counsel." I have given this opinion almost wholly because of its con- taining a pretty full summary of the authorities on the doc- trine involved. When we come to treat specifically of the United States courts, we shall have some other questions in relation to parties to consider, as also when treating of spe- cific jurisdictions in the state courts.* *lt may here be remarked that some states, as Kansas, Nebraska, and New York, have provided for the actual service of a summons in another state precisely as it is served within the state. But I do not think one state can be author- ized thus to reach into another ju- risdiction; although provision may be made, as in Illinois, for serving a summons on a defendant in an- other county, in cases where an- other Joint defendant is in the county where the suit is instituted. See Wallace v. Cox, 71 111. 548. In Iowa notice may be given to a non- resident by serving a copy of a judg- ment rendered against him ; and then the non-resident may apply for a new trial within six months. But the judgment cannot be a personal one. In some states copies of bills in chancery may be served in actions in rem, and then the decree will be at once conclusive as to the prop- erty involved. But personal equity proceedings cannot be established in that way, I judge. JURISDICTION DETERMINED BY VALUES. 93 CHAPTEE XIII. JURISDICTION DETERMINED BY VALUES. ? 99. Various limitations. 100. How limitation by value is estimated. 101. Unbalanced account. 102. Remitting excess. 103. Consolidation of claims. 104. Value in ejectment suits. 105. Ad damnum clause. 106. Values in crimes and torts. 107. No waiver as to jurisdiction measured by value. 108. Set-offs. 109. Aggregating claims in declaration. 110. Various mortgage claims. 111. Purchase price of property involved is not the standard. § 99. There are many ways in which the jurisdiction of even superior and appellate courts may be limited, whether in regard to subject-matter, as law, equity, admiralty, pro- bate, appeals, original proceedings, civil or criminal cases, special subjects, etc., or in regard to other matters, as to single judges, or courts having more than one judge, special qualifications of judges, territorial limits, particular times and modes, particular classes of persons as parties, modes of procedure, etc. (a) A limitation by the amount in contro- versy is a common one, and is the subject of the current chapter. It may prevail in equity courts as well as in law courts. Gamher v. Halheti, 5 Mich. 335. And so, where an action is brought to enjoin a judgment, the amount of the judgment is the standard. Gushing v. Sambold, 30 La. An. 426. § 100. The first inquiry is as to the mode of estimating the amount prescribed as the statutory limitation. It is the gen- (a)See 6 Foeter, (N. H.) 240, and cases there referred to. 94 JURISDICTION DETERMINED BY VALUES. era! rule that inasmuch as the verdict is hoth unknown at the commencement of the suit, and cannot be known until after jurisdiction has been taken, the amount actually ren- dered therein cannot be a proi^er standard, as, for example, "where the limitation is ijiiiiinitiin, requiring the court to refuse cognizance of sums below a particular amount, and the ver- dict renders less than the amount, or extinguishes the plain- tiff's claim altogether, it would surely be a practical absurdity to relinquish jurisdiction thereupon. It may, of course, de- termine the controversy, or the respective rights of the par- ties, but not what the amount of the original controversy was, unless it be a finding on a plea of abatement as to the jurisdiction. (/)) However, it must not on verdict appear that the amount v^-as fraudulently laid in order to give jurisdiction; and, in North Carolina, it has been held that a smaller yer- dict is prlijia facie evidence of an evasion as to jurisdiction, to be overcome only by an affidavit of good faith by the plain- tiff, (c) And it seems tliat, in an action on a book account, proof that the debtor side of the account is less than the requisite amount wall oust the jurisdiction absolutely. So held in Vermont, (cZ) perhaps on the ground of a conclusive pre- sumption of fraud. An attempted evasion will vitiate when it appears. Fcnn v. Harrington, 54 Miss. 733. But where the claim is made in good faith, it is the amount set up in the declaration which determines the jurisdiction. (e) Ahney v. (6)Hilmaii v. Martin, 2 Pike, does not show affirmatively a juris- (Arli.) 170; Tarbox v. Kennan, 3 dictional amount. The fact of a Tex. 8; Sherwood v. Douthit, 6 defect in the amount may be set up Tex. 224; Ellett «. Powers, 8 Tex. by answer or plea. Abraham «. 113 ; Griffin, Adm'r, v. Lomer, 37 Hall, 59 Ala. 386. Miss. 458 ; Pennebeoker v. Me- (c) Johnson v. Francis, 13 Ired.465. Dougal, 48 Cal. 161. (f7)Paul v. Benton, 32 Vt. 155. In Vermont it is held that the («)Muns «. Dupont, 2 Wasli C. C. belief of the plaintiff may be the 463; 4 J. J. Marshall, (Ivy.) 242; standard as to a minimum amount. Singleton «. Madison, 1 Bibb. 343; (Field V. Randall, 51 Vt. 33;) al- Wightman «. Carlisle, 14 Vt. 2!)s ; though the amount must ahvaj-s be Odell v. Culbert, 9 Watts & Scrg. ascertainable, and jurisdiction will (Pa.) 66; Hapgood «. Doherty, S not be assumed on a mere inference. Gray, 374; Murrill v. Butler, IS Wade «. Loudon, 30 La. An. 660. Mich. 291; Solomon v. Reese, 34 Yet it is held in Alabama that a ' Cal. 33 (overruling Votan «. Reese, bill is not demurrable because it 20 Cal. 90.) I JURISDICTION DETERMINED BY VALUES. 95 Wldtted, 28 La. An. 818. And hence it is a matter of judicial notice. Dartez v. Lege, Id. G40. But in New York, as affect- ing the question of costs, the recovery is the standard of esti- mation, and a phxintifif is not allowed to oust jurisdiction by demanding an excessive sum, so as to entitle himself to full costs in a superior court on the recovery of a small sum, . Poicers V. Gross, 66 N. Y. 640. And this ap.pliesto a contest for an ofiice; the salary gives the jurisdiction in some states. State ex rel. v. De Vargas, 28 La. An. 342. An unintentional mistake in figures in an account v/ill not oust jurisdiction, even though the correction of the error dis- covered on the trial reduces the claim below the jurisdictional standard, "In such cases the jurisdiction of the court would be no more affected by such error than it would be by the disallowance, on trial, of a portion of a claim, which, in the aggregate, was within the jurisdiction of the court, for any other cause or reason. The criterion is, the amount of the matter in demand, as distinguished from the amount recov- €red,"(/) Whether interest, or damages, or costs must be counted in when estimating the amount of the demand, has been vari- antly decided; but it is now settled, doubtless, that interest is to be computed on a certain claim, but not costs. Dam- ages, however, are certainly to be computed, these being part of the demand. (^r) However, interest accruing after action begun cannot be taken into the estimate, (/i) nor indeed any fact strictly subsequent, as we have seen in a previous chap- ter. Damages may be disregarded in California. 22 Cal. 468. § 101. Where an account is unbalanced, the amount is the debit side. But where balanced, it is the amount due on the settlement which determines the jurisdiction. (i) And the (/)Scott V. Moore, 41 Vt. 210. 565 ; Butler v. Wagner, 35 Wis. 55 ; (/j'jSce Fisher v. Hall, 1 Pike, VanGuisen «.Van Houten, 2 South, (Ark.) 275; Grant ». Lams, 7 Mon. (N. J.) 822, contra, costs not esti- (Ky.) 221; Inhab., etc., v. Weir, 9 mated; Oglesby v. Helm, 2G La. Ind. 22 ; Solomon v. Reese, 34 Cal. An. 61. 32, as to excluding interest, etc, (7t)Trego v. Lewis, 58 Pa. St. 460. and Paul v. Arnold, 12 Ind. 108; (iJ)Willard «. Collamer,34 Vt. 597.. SchJenker v. Talialerro, 20 La. An, OG JURISDICTION DETERMINED BY VALUES. principle is the same with regard to payments made on a definite claim. The balance settles the question of jurisdic- tion — the payment being made before suit, and with refer* euce to in'mimum as well as maximum limitations. (^/) § 102. There is no good reason why a plaintiff may not remit any excess over a jurisdictional amount in order to bring a claim within the reach of a court. And so, although one has no right to divide up a book account and sue upon it by piecemeal,* yet he may remit by credit. (A)f And even an accidental remitting will save the jurisdiction and operate as a credit for the excess. (/) And wliere a note in suit is filed with the declaration, and the debt thereon is beyond the juris- diction, but the declaration only claims a competent amount, the jurisdiction may be sustained, under a statute assigning the amount "claimed" as the basis of the authority of the court to adjudicate. (m) § 103. As to the consolidation of claims in order to confer jurisdiction, the matter has been variantly decided. It is very emphatically condemned by some courts, but allowed by others. And it seems quite reasonable where there are several claims which, according to the rules of j^leading, can be properly consolidated in a suit by including them in the same declaration, to combine the amounts, as to the question (j) Watts V. Harding, 5 Tex. 388 ; Pennsylvania court pointedly and Ausley v. Alderman, Pliill. (X. C.) emphatically forbids it. Peter ». 21-6. Sclilosser, 81 Pa. St. 439. But if in- *That is, the same account cannot terest has accrued after suit com- be divided. But different accounts, menced, so as to carry it beyond or different acceptances, being dis- jurisdiction, the jurisdiction is tinct, can be separately sued on. not ousted thereby, and judgment Frank v. Lee, 51 Miss. 101. A bill can be entered for the whole of goods purchased in one day is amount. Bell v. Ayres, 44 Conn, entire. Magruder v. Kandoiph, 77 35. Georgia forbids an optional N. C. 79. credit. Cox v. Stanton, 58 Ga. 406. (^•)Fuller V. Sparks, 39 Tex. 136. (/jAlexander ». Thompson, 3S tSo, a plaintiff may wa'.ve inter- Tex. 535. est to reduce the sum claimed to (/rt)Willielms v. Noble, 36 Ga. the jurisdictional limit. Wright o. 601. For the right to remit see Smith, 76 111. 216. And I am not Ramsey v. Wardens, 1 Bay, (S. C.) aware of any good reason for not 182; Hempler «. Schneider, 17 Mo. allowing him to remit part of the 260: Matlock t>. Lane, 32 Mo. 264; principal likewise, although the Litchfield v. Daniels, 1 Col. T. 268. I JURISDICTION DETERMINED BY VALUES. 97 of jnriRdiction.(^i) But it has been held that such a "conclu- sion, if fully carried out or pushed to its legitimate conse- quence, would enable a court, by construction to change the entire jurisdiction of the different legal tribunals. "(o) Why this declaration is not a non seqnitur, however, I am uria])lo to see. "It is the whole amount of the several suras demanded in the declaration, and not the amount of any one particular item, that is to be considered in respect to the jurisdiction," says the supreme court of Indiana ;(^) and is it not so, inev- itably? It is true policy, at any rate, to consolidate when possible. Symincs v. Strong, 28 J?. J. Eq. 131. The supreme court of Connecticut hold that several claims may be combined, provided they are properly combined in a single count of the declaration, but not where the distinct claims are sej^arately set out in different counts. There seems to be good reason for this standard of judging(r/) in one re- spect. And yet it is impracticable on the rule that the amount claimed in the ad damnum is the standard, which consists of the aggregate amount of the entire series of claims. (r) Dis- tinct claims against different persons are not to be combined. Broadivcll v. SviitJi, 28 La. An. 172. It is evident, likewise, that separate siiits in a court below cannot be combined so as to give jurisdiction to an appellate court, (s) (7i)Laugham «. Boggg, 1 Mo. 474. Conn. 218; Dennisou v. Dennison, But, if contempt proceedings are 16 Conn. 35 ; Nichols v. Hastings, instituted, the amount in contro- 35 Conn. 548. versy in the case wherein the con- (r)Hapgood v. Dolierty, 8 Gray, tempt occurred cannot be used to 373; Ladd «. Kimball, 12 Gray, ] 39; invoke the jurisdiction of the ap- Ashuelot Bank «. Pearson, 34 Gray, pellate court ; and it is held an alle- 521. gation that the prisoner will suffer (s)Collins c. Draining Co., 26 La. damages to a larger amount than An. 277. the jurisdiction amount will not And if plaintiffs unite in a suit it give the right of appeal. Wood's is not the aggregate of their claims. Case, 3U La. An. 672. but the amount of each claim sev- (o)Berry v. Linton, 1 Pike, (Ark.) erally, that gives jurisdiction. La- 256. vicux V. Company, 30 La. An. 609. (p)State Bank v. Brooks, 4 Blackf. And particularly where a creditor 486. siezes property, claiming the whole, (g)Main o. School District, 18 which is more than the jurisdic- v.l— 7 98 JUKISDICTION DETERMINED BY VALUES. In Mississippi, where separate suits were brought before different justices of the peace on distinct promissory notes, which combined amounted to more than the sum to which the jurisdiction of a justice of the peace was limited, and the de- fendant appealed, the suits were dismissed for want of juris- diction below. (f) The court said: "Suppose both suits had been brought before the same justice, could he have enter- tained jurisdiction of the causes of action? The constitution declares that the jurisdiction of justices of the peace shall be limited to causes in which the principal of the amount in controversy shall not exceed fifty dollars. The principal sum of these notes is ninety-seven dollars and sixty cents, and this was the amount in controversy, because it was what plaintiff claimed and what the defendant refused to pay. It is, then, clear that the claim was one of which a justice of the peace could take no jurisdiction whatever, and it is difficult to see how the powers of two justices could be made greater than those of one in regard to the same controversy." Neverthe- less, I am quite unable to see how this case can be sustained on principle. In the absence of a statute requiring the con- solidation of similar claims sued on, the acts of the parties should determine the nature of the controversy in such case. Why were sej)arate notes given but that they were to be re- garded as distinct claims? A book account or a single note is not divisible; but how can one be compelled to sue on all notes in his possession at once; or, suing, why may he not treat distinct promissory notes as distinct claims, and so sep- arately collectible ? I suppose statutes of consolidation only compel the combination of different suits pending in the same forum. The nature of the claims, the action of the parties in establishing them in distinction, and the rights of the holder, would seem to justify treating throughout, as dis- tinct and separable claims, what was so made separable and distinct at the beginning by the acts of the parties in tional value, and another antagonist appeal, the latter cannot appeal, creditor, claims less than the juris- Fickard v. Wade, 30 ^La. An. (523. dictional amount neces.'^ary to an (<)Scofield V. Parsons, 26 Miss. 403. JURISDICTION DKTERMINED BY VALUES. 99 the execution of ditferent promissory notes or other choscs in action. In actions for negligence, it has been held that the imme- diate consequences of a single act of negligence may be com- bined, but not the damages resulting from several acts; as, for exami^le, where several animals are killed at one time by a railroad train, the claim for damages will be considered a unity, but claims for damages in killing animals at several different times cannot be consolidated. (if-) § 104. In ejectment, it has been held that the value of the lands in controversy determines the jurisdiction. (r) But where property is levied on in attachment, it is the amount of the claim and not the value of the property which consti- tutes the standard. (?(•) Where the ejectment is by a land- lord against a tenant, it is held to be the value of the lease which gives jurisdiction to the court. (.r) Under the penalty of a bond, the amount of the penalty is the limitation in Pennsylvania. (i/) But, in Connecticut, the rule seems to be the other way, as decided in a case where a "receipt" was held as security for the delivery of property. The court said : "Though the receipt was absolute in its terms, yet it was nevertheless contingent b}^ operation of law, and it was accordingly held as a security only for the actual value of the property which had come into the receiptor's hands. The five hundred dollars, therefore, was in the nature of a penalty to secure the return of the property, or the payment of its ! value. As such, it was a security only for the value of the 1 property, which value alone, when shown, could be recovered, (w)R. R. V. Elliott, 20 Ind. 430; not do so no implication is indulged R. R. V. Litton, 27 Ind. 71. against the jurisdiction. And even (u)State V. Smith, 14 Wis. 567. if the proof shows the value of the And so in Michiiran, where title land to be beyond the jurisdiction or possession of land is involved in amount, the court will not be the value of the land gives the ousted of its jurisdiction thereby, jurisdiction. Fuller*. Grand Rap- Sullivan ». Vail, 42 Conn. 90. ids, 40 Mich. 395. ((r)Hoppe v. Byers, 39 la. 573. But, in Connecticut, it is held, (;),')Ellis v. Silverstein, 26 La. An. contra, that it is not necessary for a 47. declaration to state the value of the (^)Korrester v. Alexander, 4 land in ejectment. And if it does Watts & Serg. 312. 100 JUKISDICTION DETERMINED BY VALUES. and it was on this ground that only the sum of one hundred dollars was recovered in the case. This being so, it follows, of course, that the live hundred dollars was not a debt to that amount on the non-delivery of the property, but only to the amount of the value of the property; which, being less than five hundred dollars, the city court had jurisdiction of the subject- matter. "(^)* § 105. Where the ad damnum exceeds the jurisdiction, it is held that the jurisdiction is excluded, even although the actual amount in controversy is not beyond the prescribed limit, (a) But where there is no amount named in the general conclusion, or ad damnum clause, it is held, in Indiana, that the aggregate amounts claimed in all the counts may be taken. (6) t § 106. In matters of crimes, misdemeanors, and torts, the principle of limitation by amount is essentially the same. Thus, in larceny, the jurisdiction is to be determined by the value of the property claimed in the indictment, and not by. that ass'gned in the verdict of the jury,(c) although, of course, the penalty may be guided by the latter. But when a court has only jurisdiction in misdemeanors where the fine does not exceed live hundred dollars, it cannot take cognizance of (g)Fowler v. Bishop, 32 Conn. (a)Ashuelot Bank t). Pearson, 14 206. Gray, 521. *In Connecticut a statute pro- (6)Culley p. Laybrook, 8 Ind. 286. vides that the debt secured in a jThe ad damnum cluuse goverm^. mortgage shall determine the juris- in Connecticut, unless it clearly diction in foreclosure in certain appears on the face of the declara- courts; and even if the foreclosure tion or the bill of particulars that is for the interest only, which is the debt or damage actually claimed less than the jurisdictional limit as is of necessity too small to confer to amount, the statute applies. jurisdiction. Hunt v. Rockwell, -41 Stone t). Piatt, 41 Conn. 2S5. And, Conn. 51. In Massachusetts the r/f7 on the other hand, if the amount rfa7«vi"wi clause absolutely governs, secured is only five hundred dol- without regard to the amount lars, the courts have jurisdiction claimed in the body of the declara- although the added interest takes tion, or proved at the trial. Clay the amount beyond the juris- v. Barlow, 123 Mass. 378. dictional limit. Boyle c. Rice, (^-jState v. Church, 8 Clarke, (la.) Id. 418. 258. JURISDICTION DETERMINliD BY VALUES. 101 an offence where the fine may be five hundred dollars, and, m addition, the offender may be declared infamous, and incapa- ble of voting or holding office. (tZ) In trespass to real estate the amount demanded limits the power of the court. (g) And so, if a demand exceeds the authority of a justice, a verdict for less than the limitation on the justice's court will not save the jurisdiction. But in Louisiana it is the value of the land that controls. Derbies v. Romero, 28 La. An. 644. In replevin, if the property is distrained for rent (or levied on under execution) the amount claimed is the standard; but where it is in the nature of detinue, to try the right of property, fche value of the property furnishes the rule.(/) In a continuing trespass, day after day, under a statute prescribing a fine for the continuance, as, for example, a fine of one dollar for every twenty-four hours a fence shall con- tinue across a public road, the demand for the whole time determines the jurisdiction, because the offence is indivisi- ble.(^) § 107. As the limiting amount is of the subject-matter, and not pertaining merely to a privilege of defendant, it fol- lows that it cannot be waived. But when it becomes apparent that the jurisdiction has been exceeded, it is the duty of the court to dismiss sua sponte, without objection by the defend- ant, (/t) and the rendering of a judgment is actionable to the defendant, (i) Yet, as in other cases, where there is a well-founded doubt as to the amount, the jurisdiction will be sustained. (j) And a (d)Flynn t>. Commonwealth, 2 taking and detention, added to the Bush. 593. value of the property, exceed the (e)Linduff v. Plank- road Co., 14 jurisdiction, this will not oust the OhioSt.,33G. jurisdiction. Higgins v. Deloach, (/)Pcyton V. Robertson, 9 Wheat. 54 Miss. 498. 528. (AjGamber v. Holben, 5 Mich. 333. (jr) Commonwealth ». Mills, 6 («)Morgan v. Allen, 5 Ired. 156. iJush. 296. (j)nenry o. Tilson, 17 Vt. 484. And in the latter case if the damages assessed for the wrongful 103 JURISDICTION DETERMINED BY VALUES. manifest error will be allowed to be corrected in order to save jurisdiction, (k) if the amendment is made before trial. (Z) Although, in doubtful cases, all intendments are in favor of the jurisdiction, yet it is a proper ground for dismissing a case, on motion, that the declaration does not show, or else a promissory note on the trial, that the sum due is within the jurisdiction. (m) And if the plaintiff claims to bring down the amount below the limitation by payments not indorsed on the note, the payments must be set out in the declaration. (?;?) In Vermont, however, where these points were decided, jurisdiction has been made to depend on the j^^'oof^ ^^^ only in book accounts, but in trover, in assumjjsit, and in trespass de bonis as2)ortatis,(i)i) which is not the general rule. A want of jurisdiction as to amount is not cured by a trans- fer to another court under the provisions of a statute provid- ing for such transfer, (n) though such court would otherwise have jurisdiction.* § 108. As to set-offs, where a statute allows a judgment for an excess, such excess is taken to be the sum in disj)ute ; as, for example, where a suit was for one thousand dollars, and a set-oif was brought in for four thousand dollars, and judgment for the balance, it was held that the amount in dis- pute was three thousand dollars, and, therefore, that the supreme court of the United States had jurisdiction of an appeal, (o) In Kentucky it appears that where a plaintiff demands a sum which is reduced below the limits, by set-off or counter claim, the appellate court may take jurisdiction notwith- standing the smallness of the judgment ; but if the demand is (yfc)Temple e. Bradley-, 14 Vt. 257. principle that an appeal cannot (;)Whitney v. Sears, IC Vt. 590. confer jurisdiction, in an}' way, (m)Perkins v. Pick, 12 Vt. 596. whereof the lower court had none, (w)Parker «. Shropshire, 26 La. even if the case is otherwise within An. 38. the jurisdiction of the appellate *Aud a party is not allowed to court. Billingsly v. State, 3 Tex. remit in an appellate court so as to Ct. of App. 686. {rive jurisdiction. McDonald v. (())Ryan v. Bindley, 1 Wall. G7. Dickens, 58 Ga. 77. It is a settled JURISDICTION DETERMINED BY VALUES. 103 thus reduced by verdict, there is no appeal, on the ground that the sum in controversy is the judgment rendered, when the case is brought up for review(/') — a ground sustained by the United States supreme court in part, except that if the plaintiff appeals his original claim is the sum in disi3ute.(r/) In California, where a plaintiff claimed two hundred dol- lars, and an off-set was pleaded of one hundred and twenty- five dollars, and judgment was given for plaintiff for eighty-six dollars, from which the plaintiff appealed, the supreme court refused to entertain jurisdiction, on the ground that the sum in dispute was less than two hundred dollars, (r) But, on principle, is not the rule in the United States coart the better one? When a plaintiff appeals is it not because he claims he has been wa-onged by the judgment as to his demand? Therefore, ought not the demand to be the criterion ? Where a set-off is interposed, and the excess over and above the plaintiff's demand exceeds the amount of jurisdic- tion, tlie set-off should be rejected. (s) But the excess may be remitted over and above the jurisdictional amount. (^) § 103. In Indiana, where there is no general sum stated in the conclusion of a declaration, the aggregate of the differ- ent counts may be taken as the value of the claim. (i*) § 110. But where there are several mortgagees brought before the court in a suit to foreclose, entered by a senior mortgagee, and the aggregate claims are beyond the jurisdic- tion, it is held that this does not oust the jurisdiction of the court, the case being similar to that of an attachment where separate creditors file their respective claims. (??) § 111. The allegations of a declaration are not annulled by proof of the purchase price of the property in controversy being less than the limitation value, (w) (p)Tipton V. Chambers, 1 Met. (s)Murphy v. Evans, 11 Ind. 518. (Ky.) 5GS; Williams v. Wilton, 5 (OPate «. Shafer, 19 Ind. 174. Dana, 597. ('/)Culley v. Laybrook, 8 Ind. 286. (f/)Gordon «. Ogden, 3 Pet. 33; (^!)Mack «. Grover, 12 Ind. 255. Smith V. Honey, 3 Pet. 469. ((c)Oakey v. Aiken, 12 La. An. 11. (r)Simmons v. Brainard, 14 Cal, 278. 104 JURISDICTION DETERMINED BY VALUES. And so, on the other hand, if a declaration lays an amount witliin the jurisdiction, but the proof shows a larger amount, the suit will be sustained provided the verdict is only for the amount within the jurisdiction; and if there are two counts, and the proof shows one of them to be beyond the jurisdiction, the suit may be maintained on the other, the one in excess being considered merely auxiliary. (x) And so in an action before a justice of the peace. (?/) (3) Cotton Press Co. v. Chevelier, (y)^hey v. Engle, 1 Wash. Ter. 66 Ga. 4i)4. 72. VENUE. 105 CHAPTER XIV. VENUK. $ 112. Meaning of term " Venue." 113. General jurisdiction of state. 114. Suits between non-residents. 115. Torts committed without the jurisdiction. 116. Venue in regard to lands. 117. Venue in regard to counties. 118. Process in another county. 119. Jurisdiction by levy on land. 120. Venue in regard to boundaries. 121. Place of holding court. § 112. The term "Yeime," in relation to actions brought, means simiDly the place of trial. As to what are styled local actions — such, for example, as an interest in lands — usually the venue is the district or the county, as the case may be, where the subject-matter lies. But, in general, transitory actions may be tried wherever personal service can be made on the defendant ;* and these may be either ex contractu or ex delicto, with exceptions to be noted below. § 113. As to the general jurisdiction of the courts of a state this is, of course, co-extensive with its sovereignty, which is limited only by the territory of the state, and attaches *A party must have an oppor- where defendants indorsed on the tunity to be heard as to his rights back of a complaint, in vacation, in a personal action, and even where "we hereby enter an appearance to the proceedings are in rem there the foregoing action, and waive must be some kind of notice, so the issuing and .service of process," that, as far as possible, the oppor- this was held not to constitute an tunity may be given the owner to appearance, and, there being no appear and tlefend. Windsor v. service of process, no personal McVeigh, 93 U. S. 274. In a per- judgment could be entered. Mc- sonal action there must be personal Cormack «. Bank, 53 Ind. 46(5. service, or a personal appearance, While a non-resident may appear or appearance by an attorney. And by an attorney, and thus, in all re- 106 VENUE. to all the property and persons within the limits thereof, although to be so exercised as only to conclude by judgment parties to the actions brought in the courts, and not the citi- zens of other states in j^cTsonam, except those who consent to the jurisdiction. (a) And on this principle a crime committed in another state can never be tried in the domestic tribunals. Thus, in Louisiana, where a gun was stolen in another state, and conveyed across the border and sold, it was held that as the mere selling the gun in the state was no violation of the laws, although it might be in proof that the original intention in taking it was to steal it, the seller could not be prosecuted there ; the larceny, if such it was, having been perfected in the adjoining state. (^) And, on the other hand, where a statute prohibits the removal out of the state, or selling or otherwise disposing of property under a specific lien, as a chattel mortgage, and property is taken to another county and there sold unlawfully, the place of sale is the venue of the offence. Rohersnn v. State, 3 Tex. Ct. of App. 502. In Massachusetts it has been decided that an offence com- mitted on board a merchant ship in tide-water, lying at anchor between one-third and one-half mile distant from the Charles- town navy yard, is exclusively cognizable in the state courts. (c) And yet, for the purposes of certain criminal actions, the navy yard itself is considered out of the state sovereignty and jurisdiction, because the United States has purchased the spects, submit to the jurisdiction, however. Smith c. Denman, 48 (Wilson V. Zeigler, 44 Tex. 657,) it Ind. 65. Service by publication is held in New York that the must be strictly according to the authority of an attorney to appear statute, and particularly in divorce in a justice's court must be shown, — the only personal action wherein and will not be presumed. Sperry a decree can be rendered by publi- «. Reynolds, 65 N. Y. 179. The cation. Stanton v. Crosby, 9 Hun. appearance must not be mereh' for 370. Notice by publication o-ive^ a special purpose, as to question jurisdiction as to property within the jurisdiction of the court, (Mc- the jurisdiction. Johnson v. Her- Nab V. Bennett, 66 111. 158,) or to bert, 45 Tex. 3(i4. move to set aside an attachment, ((^) Adams v. Lamar, 8 Ga. 89. (Tillany «. Lord, 65 N. Y. 310,) or (6)State v. Keunnals, 14 La. An. to testify as a witness, (Nixon «. 279. Downe}^ 42 la. 80.) An applica- (f)Conmiouwealth e. Peters, 12 lion to defend will be conclusive. Met. 390. vp:nue. lOT yard, and the state has only reserved such concurrent juris- diction over it as that process might run therein for crimes committed elsewhere in the state. And so, where the ;3tat- ute required that all vessels carrying stone within the com- monwealth should be weighed and marked, under penalty for neglect, and a qui tani action was brought against the owner of a vessel not thus weighed and marked, which was employed in carr3-ing stone from Maine to the navy yard, it was held the action was not maintainable, on the ground that the vessel was not emjjloyed in conveying stone within the commonwealth, within the meaning of the statute. (r/) The rule of tide-water jurisdiction is thus stated by the- New York court: "Where a body of water, in which the tide ebbs and flows, is situated between a range of islands and the main shore, and all are so near to each other that a person, with the ordinary power of vision can see with the naked eye, from j)oint to point, on every part of the connecting line, what is doing on each, it is included in the county adjoin- ing, according to the rationale of the rule which extends the jurisdiction of the county to a line running from one to the other of the fauces terra." (e) And, previously, it was held that "Long Island Sound is, by well settled rules, a part of the high seas, and no one of the states bordering upon it has the right, by any statute or other act of sovereignty, to extend her juris- diction oxev it. The high seas include all those parts of the main ocean which are not within the fauces terree, the mouth or chops of a channel — that is, the space between the head- lands so near to each other that a person on one of them can see with the naked eye what is doing on the other. If the headlands, or points upon the main-lands, are thus near, the water within them is an arm of the sea, denominated a bay, gulf, estuary, etc., as the case may be, and is included, or may be, in the adjoining state or county. If the distance between the headlands is greater than that mentioned, the waters between and within them belong to the high seas, and (fZ)Mitchcll «. Tibbctts, 17 Tick. (e)People «. Wilson, :J Park ( 'rim. aOU. Cases, 205. 108 VENUE. are exclusively under the maritime jurisdiction of the federal courts. "(/) This topic will recur again, more particularly, in the chapter on admiralty. It is exclusively for the political department to define state boundaries; and the courts cannot act upon it when the government has so exercised its prerogative. (^) § 114. Tiiere is no impropriety in a cognizance by the courts of actions brought wherein both parties are non-resi- dents and citizens of different states.* On this the supreme court of North Carolina remarks : '*To many purposes the citizens of one state are citizens of every state in the Union. The}' are not aliens, one to the other; they can purchase and hold, and transmit bj^ inheritance, real estate of every kind in each state. It would be strange, indeed, if a citizen of Georgia, meeting his debtor, a citizen of Massachusetts, in the state of New York, should not have a right to demand what was due him, nor be able to enforce his demand by a resort to the courts of that state. It is said that the federal court is open to him. That is so, provided the sum claimed is to an amount authorizing the interference of the latter court, to-wit, $500. What is to become of those numer- ous claims falling short of that amount? Must a citizen of California, to whom a citizen of Maine owes a debt of $490, go to Maine and bring his suit there, or wait till he catches him in California? We hold not; but the courts of every state in the Union, where there is no statutory provision to the contrary, are open to him to seek redress. The case of Stramberg v. Heckman, 1 Busbee, 250, to which our attention has been drawn, was between two foreigners. The court, in sustaining the demiu'rer to the plea in abatement, stated that it did not appear in the plea where the contract sought to be enforced was entered into — whether in a foreign country or in this state — and thereupon the demurrer was sustained. If the principle enforced there between foreigners is to be ap- (fjManlcy »J. People, •'! Scld. ;!0(i. f](>?;e a inortLiaiie anainst anoflior (5')Bedel v. Liomis. 11 N. H. 15. non-resideut. Butler v. Carler, 44 *And so a non-residcut can i'urc- Tex. 4Sj. VENUE. 109 plied to the citizens of the different states of the Union when seeking to enforce a contract in the courts of a third, then the plea here is defective ; there is nothing in it to show that the contract was not made in North Carolina. In England a contract made in a foreign country may be enforced there by the parties to it."(/t) Delavidge v. Viaima, 1 B. & A. 284; Story's Conf. Laws, §§ 538-554. But, unless in attachment or other proceedings in rem, there must be personal service, and no publication can be allowed so as to permit the entry of a personal judgment.* Says the Texas court, in a case involving this matter: "The petition apj)ears to be an anomaly in judicial proceedings, and not in conformity or reconcilable to either the common or statute law of this country. It seems to be an effort to call upon the court, without having either person or property within our jurisdiction, to decide an issue between citizens of another state, that could never be of consequence to- either party, except on the future contingency of the defendant hereafter introducing proj)erty within our jurisdiction on which the judgment could operate; and could this issue be forced on us it would be a precedent for exercising jurisdic- tion on issues sent from any part of the world, "(i) Personal service, however, may be waived by appearance, (j) Massachusetts goes further than North Carolina, in which latter state, as we have seen above, the comity is not ex- tended to foreigners. But the court of the former state de- clares: "Personal contracts are said to have no situs or locality, but follow the person of the debtor wherever he may go, and there seems to be no good reason why courts of any country may not lend their aid to enforce such contracts, (A)Mi]ler v. Black, 2 .Jones L. 842. ally. Insurance Co. «. Collins, 54 ♦However, as to foreign corpora- Ga. 376. And the same rule maybe tions, they may be served by sum- established as to diffeient coimties mons read to a resident agent, and in the case of a resident corporation. leaving a copy, wherever the cor- R. li. «. Oaks, 52 Ga. 410. poration does business by means of (/)Ward v. Lathrop, 4 Tex. 181; an agency or branch office. The Bartlett v. Holmes, 12 Hun. 398. mode and the venue are usually (/)Canipbcll v. Wilson, 6 Tex. prescribed by statute, specific- 392. 110 VENUE. especially since it is a well known principle that, in constru- ing such contracts, the law of the place where they are made will be administered. So that the objection made in this case of the possible difference between the laws of Demerara and this commonwealth can have no influence on the ques- tion. "(A:) § 115. As to torts committed without the jurisdiction, the influence of which extends into the jurisdiction, an interest- ing question arose in a case, which, however, passed off un- fortunately on another ground, leaving the question unde- cided. The case was in one of the circuit courts of the United States, and involved these facts : A manufactory was located on Goose Island, near the state of Connecticut, whence the noxious odors were blown to the plaintiff's residence in the state, injuring the health of his family, destroying their gen- eral comfort, and impairing the value of the property. On the argument of a bill to enjoin the nuisance it was claimed that even if Goose Island were outside of the limits of the district of Connecticut, yet, as the odors were wafted to the shore, and there inflicted the injury, the offence was thereby "ftithin the jurisdiction. (/) In New York it is held that, as a matter of law, the courts have jurisdiction of torts committed abroad, in a foreign country, between non-resident foreigners, but will only exer- cise it, in their discretion, in exceptional cases, on account of public policy. (/;;) The matter is closely discussed, and the reasons set forth as follows : "Actions for injuries to the person are transitory, and follow the person; and, therefore, so far as the nature of the action is concerned, one foreigner may sue another foreigner in our courts, for a tort committed in another country, the same as on a contract made in another country. It is now settled that the courts of this state have and will entertain jurisdiction of actions for personal injuries. (/i;)Ban-ell v. Benjamin, 15 Mass. enforced in anotlier jurisdiction. C3.56. Kennedy v. Cochrane, 65 Me. 51)4. A void contract, by tlie laws of (?)Keyser v. Coe, 9 Blatchf. 33. the state where made, will not be (?«)Dewitt «. Buchanan, 54 Barl). 32. VENUE. "ill committed abroad, when both or either of the parties are cit- izens of the United States. Glen v. Hodr/es, 9 Johns. 67 ; Smith V. Bull, 17 Wend. 323; Lister v. Wrir/ht, 2 Hill, 320; Johnson v. Dalton, 1 Cowen, 548. I am aware that the New York common pleas, in Malony v. Dows, 8 Abb. 310, held other- wise, but that case is not regarded as authority in this court. That decision was probably affected by the necessities of the case, overlooking the second section of the fourth article of the constitution of the United States. The case of Fahrinas V. Mostyn, 2 Black. 920, is referred to on this question. In that case Lord Mansheld put, by way of illustration, the case of two Frenchmen fighting in France, and expressed a doubt of the jurisdiction of the courts of England in such case. But the reason given why the court would not have jurisdic- tion in such case has been held in this state not sufficient. See Mclvor v. McCahe, 20 How. Pr. 261, and Gardner v, Thomas, 14 Johns. 134. In the latter case the action was for a tort committed on the high seas, on board a British vessel, both parties being British subjects. It originated in a jus- tice's court, where the plaintiff had judgment. The court held that, although it might take cognizance of torts commit- ted on high seas, on board foreign vessels, when both parties were foreigners, yet, on principles of policy, it would often rest in the sound discretion of the court to afford jurisdiction or not according to the circumstances of the case. On this ground the judgment of the justice was reversed. I have been unable to discover any principle on which the jurisdiction of the court in such a case as this can be denied ; but, as a question of jJoUcy, there are many reasons why jurisdiction should not be entertained. Unless for special reasons non- resident foreigners should not be permitted the use of our courts to redress wrongs or enforce contracts committed or made within their own territory. Our courts are organized and maintained at our own expense, for the use, benefit and protection of our own citizens. Foreigners should not be invited to bring their matters here for litigation. [Section 114, supra.'\ But if a foreigner flee to this country he may be pursued and prosecuted here. Nothing appears in this 112 VENDE. case showing why jurisdiction should be entertained. It seems an ordinary case of assault and battery committed in Canada, both parties still residing there, the defendant being casually here when arrested. It is most clearly against the interests of those living on the border for our courts to encourage or entertain jurisdiction of such actions. To do so would establish a practice which might often be attended by serious disadvantage to persons crossing the border. The true policy is to refuse jurisdiction in all such cases except for special reason shown." And this policy is extended ex- pressly to cases between mariners and master on board a vessel lying in port.(») But not to the extent which would prohibit a discharged seaman, though a foreigner, from bring- ing an action against the foreign master of the ship for a tort committed on the high seas.(o) An action cannot properly be brought in one state for official misconduct in another state. (p) And in New York, not in another county, by express statute. § 116. Although no real action can be maintained in one state as to lands situated in another, yet, where a defendant resides within the jurisdiction, there is nothing to hinder a suit from lying against him in regard to the proceeds of lands so lo- cated; as, for examj)le, to compel distribution thereof as a part of an estate under administration, (g) And so, in w^ind- ing up the affairs of a partnership, a court may order the sale of real estate in another district or state. "Such an order does not require the agency of any officer out of the jurisdic- tion of the court. The order is to act upon the parties in the cause, and the transfer of the title is to come from them, and not from the person through whose agency the sale is to be made. It is not like the case of land sold under execution. If the court has not the power to order a sale, it has not juris- diction over the subject-matter at all, and cannot divide the land, or compel either party to release his title to it when (7i)Gardner v. Thompson, 14 (j9)Flower v. Alien, 5 Cowen. 669. Johns. 137. (g) Edwards v. Ballard, 14 La. An. (o).Tohn3on v. Dalton, 1 Cowen, 362. 543. VENUE. 113 lying in another state, and suits must be commenced in each state wliere the land lies. Such inconvenience in the admin- istration of justice cannot be tolerated, and hence the court must have power to direct a public sale of the land, and com- pel the parties to convey the title accordingly, "(r) although this is a well-marked exception to the general rule concerning local and transitory actions. The principle does not apply to cases of partition, because therein the court makes the titles, (.s) and the proceeding is in rem. In all cases, however, whereni the action is merel}^ in personam, the rule prevails. (s) And so a court of equity may entertain a bill for the specific per- formance of a contract respecting land in a foreign country, the parties being resident in the jurisdiction. (f) § 117. We now consider the subject of venue, in its more common view, in relation to different counties of the same state, as usually, for the purpose of convenience, courts of original jurisdiction are limited to a single county, and sometimes to a smaller territory, as a town or city. And, in a modified form, the same principles, to a considerable extent, apply to such limits as to those of a state jurisdiction. The division of a county does not, however, oust jurisdiction already at- tached in pending causes. Barnes v. Undencoocl, 54 Ga. 88. Even a partial jurisdiction does not draw the entire cogni- zance of a case within the pow-er of the court necessarily. Thus, where the validity of a will was in question, and suit was brought in a county other than where the testator had been domiciled, in which it was contended that, as the court had jurisdiction to settle with the executor for the rents and profits of the land of the estate, and to decree a partition thereof among the claimants, it had also acquired jurisdiction thereby to inquire into the validity of the will, which was an essential prerequisite to partition. But the court held that the admixture of subjects, concerning some of which the court had jurisdiction, could not operate to confer jurisdiction of the others; for, if this were allowed, there would be no diffi- (r)Lyman v. Lyman, 2 Paine C. (.^).Johnson v. Kimbro, 3 Head. C.4ti. (Tenn.) 559. (Olbid; 2 Story Eq. Jiir. H 743, 744. v.l— 8 114 VENUE. culty in so changing the jurisdiction in nearly all instances where a will was contested. And so it was held the only jurisdiction in the case was exhausted in entering a judgment for costs against the complainant; and this rested on the ground that, although the court had no right to try the valid- ity of the will, yet it had jurisdiction to try similar cases arising within its own territorial limits. («) In Mississippi it is declared that actions of ejectment and trefipass quare elausum freglt are the only actions which may be brouglit in a county where the defendant does not reside and is not found. (r) I judge usually such actions cannot be so brought elsewhere. And, more especially, an action in the nature of a review cannot be brought in the court of one county to reverse a judgment rendered in the court of another county. Where this was attempted, on the ground of newly discovered evidence and error in law, it was declared that such proceeding can only be had where the records are: that is, in the court which rendered the judgment sought to be reviewed. (/r) And, on the same principle, it has been held that a bill of revivor, concerning an action relating to land, must be brought in the court where the records are, notwith- standing a change in the boundaries of the county has brought the land into another county, after the rendition of the orig- inal judgment. (,r) It is, moreover, competent for a legisla- ture to provide, in establishing a new county, that pending suits in ejectment shall not be disturbed, even as to lands falling within the limits of the new county. (//) But, as above stated, where a court has jurisdiction (as in partnership accounts) of the persons and cause of action, proceedings in rem may attach as an incidental remedy, so that the court may order a sale of lands in another county, as we noticed above in regard to lands in another state. (>) And, on the other hand, "if there are equities, arising from con- {»/)Moran «. Masterton, 11 B. (.r)Arnold v. Styles, 2 Blackf. 3!13. Mon. (Ky.) 20. (^).Jackson v. Dains, 2 Cowcn, («)Elder «. Hilzheim, 35 Miss. (N. Y.) 526. 243. (.-)Webb v. Wright, 2 Bush, (Ky.) (w)Pari.«h v. Marvin, 15 Wis. 248. 126. " VENUE. 115 tract or by operation oi' law, by virtue of which a party is entitled to subject specific property, real or personal, to sale for the purpose of satisfying a debt," jurisdiction in rem may be taken, even when both parties reside out of the jurisdic- tion, "Whenever it becomes necessary for the decree to act upon the thing, (directly,) upon the particular property, the jurisdiction attaches to the thing, abides with it, and can only be brought into action by suit where the thing is;"^*)* even if all the parties reside elsewhere, as in trespass quare /regit. Goram v. Merry, 65 Me. 1H8. § 118. Where a case is pend'ng in a defendant's own county, a judge has not power to compel the defendant to appear before him at chambers, in another county, to answer interrogatories with a view to apj^ointing a receiver of the property in dispute, since "parties have rights which may not yield even to judicial convenience, "(/j) Nor can a court, in Illinois — nor, perhaps, anywhere else — send its process into another county in a suit on a promissory note, by an as- signee against an assignor, merely on the ground that the note was executed and indorsed in the foreign county. (c) Yet, in that state, by statute, a summons may be sent into another couijty where there are two defendants and one re- ' sides in the county where suit is brought. So in Kentucky ;(rf) and in Georgia, where it is held that an acceptor may hold the drawer and indorser of a draft as joint promissors, and therefore bring suit in a county where either resides. Ross V. Saidshury, 52 Ga. 380. But in Illinois it was formerly held that a place of payment, if specifically set out, and suit was brought within the county where payment was to be made, would of itself authorize sending process into (<7)rjatrobe e. Hayward, 13 Flor. of applying for the decree. Wliit- 203. comb «. Whitcomb, 46 la. 437. *Divorce is regarded as a pro- And, indeed, this is the general ceeding in rem because it fixes the rule in all cases as to venue. Church status of persons. But where the v. Grossman, 49 la. 444. statute requires tlie residence of the (J)Cook v. Walker, 15 Ga. 466. applicant, it means a bona fide, per- (c)Maxwell v. Vansant, 46 111. 60. manont residence, and not a tempo- (d)Uyer8 v. Lindsay, 5 Bush, 507. rary residence for the mere purpo.se 116 VENUE. another county, since it was held that "the court in such case had jurisdiction without regard to the residence of the parties. It was the place of payment which controlled the jurisdiction* and authorized process to issue to a foreign county against the debtor. "(<;) In Georgia, in cases of lien, a summons may issue in the county where the property is, and be made returnable where the defendant resides. Thorpe v. Foster, 52 Ga. 80. Where a statute does not authorize serv- ice of summons in transitory actions wherever the defendant is found in a count}' where he does not reside, no action can be commenced in such foreign county merely in order to be removed to the county where a trial may be had. Hayuoocl V. Johnson, 41 Mich. ,">98 ; Barnard v. Hinkley, 10 Mich. 4.58; Insurance Co. v. Judge, 23 Mich. 492. § 119. Where one obtained a judgment against two defend- ants, and levied on property belonging to one in one county, and on personal property belonging to the other in another county, where he resided, but where the plaintiff did not reside, and the owner filed a bill to compel a release of the levy, on the ground that it was made in fraud of an agreement, and claimed that the levy gave jurisdiction over the person of the plaintiff in the original action, it was held the levy had no such effect, and the court could not entertain the complaint without personal service. (,/) § 120. The matter of boundaries may come before the courts in determining the question of venue. f In New York the statute j)rovides that when an offence is committed on a *Thus,where a banker's certificate in the latter county, when the stat- of deposit was by its terms payal)Ie ute merely provides that a written at a certain date, " on the return of contract may be sued on where exe- the certificate,"' it was held to be cuied. Hatch v. .Johnson, 44 la. payable wliere the bank was located, 536. The present rule, in Illinois, and that an action on it should be is, I think, more fair and equitable, instituted there, and not where the namely, suit may be brought in any banker resided. Sanbourne v. county where personal service can Smith, 44 la. 152. But, where there be had on the defendant, wasa verbal contract that payment (f) Waterman v. Peet, 11 111. 649. for goods should be made at the (/jMays?). Taylor, 7 Ga. 24iJ. place of sale, the purchaser's resi- tWhen a stream is the boundary, dence being in another county, it it continues .so not^ith^tandin^' a ■was held the action must be brought change of place by a gradual wear- VENUE. 1 1 7 boundary line, or within five hundred yards of it, the olfeiuler may be indicted in either county. And it is held that, under that statute, it is not requisite that the indictment should allege the commission of the offence in the county where the prosecution is pending. It is sufficient that it shows juris- diction in the grand jury finding the indictment and in the court. (f/) In Minnesota, under a similar statute, the indict- ment may allege the place to have been in the adjoining county, within one hundred rods of the boundary line. (/i) A similar statute exists in Illinois and probably in other states. In Iowa it has been held that where one county incurs expense in prosecuting a crime committed near the border of another, and within its limits, the county where the prosecu- tion takes place cannot recover the exj)ense from the county wherein the crime occurred. Floyd Comity v. Cerro Gordo County, 47 la. 186. § 121. The place of the sitting of the court, however, is not so rigidly fixed as that all proceedings in another room are unauthorized and void — one court remarking, quaintly, that it would hardly be pretended that it is "sacramental" to use one room rather than another in holding open court. (i) But a removal to another town within the county, unauthor- ized, will fatally vitiate all proceedings. (j) A judge may sign an order outside of his territorial jurisdiction, if it be an order which can be granted at chambers, on an ex parte ap- plication, (/c) Yet, final jurisdiction is always conferred on courts, and not upon judges at chambers. (Z) See chapter XVI., on Terms of Court. inc; of the banks. But if it suddenly constjiied so strictly as to make a makes a material change, as by a subsequent term, held at the former " cut-off," the boundary remains in seat, illegal, when suitable conven- the abandoned channel. Collins v. iences have not been provided at State, 3 Tex. Ct. of App. .323. the new county seat. Bouldin v. (/7) People V. Davis, 56 N. Y. 100. Ewart, 63 Mo. 330. (//)State V. Kobinson, 14 Minn. (/)Northrup v. People, 37 N. Y. 44'. <. 204. (/)Smith «. Jones, 23 La. An. 44. (/-jSuccession of .Tacob Weizel, And where a state removes a 17 La. An. 70. county seat, and tiie act is to take (/)I}oard of Education v. Scovillc, effect on its passage, it is not to be 13 Kan. 32. lis CHANGE OF VENUE. CHAPTEE XV. CHANGE OF VENUE. § 122. Transfer of cause to another tribunal. 12'6. Cause for change of venue — prejudice. 124. Cause of action arising in another county 125. Convenience of witnesses. 126. Must be in accordance to statute. 127. Discretion of the court. 128. JSotise to change. 129. Cliange to remote county. 130. Parties to application. 131. Provisional courts. § 123. There are various circumstances which may author- ize and even require,* the transferring of a cause to the jurisdiction of another tribunal to be tried. This is not to rectify a mistake in the place of bringing an action; for, where a wrong venue is laid, it is a subject of demurrer, if apparent, or otherwise of a plea in abatement; or, in some states, it will nonsuit the plaintiff at the trial. (a) Some- times, however, a want of jurisdiction of subject-matter will justify a transfer, instead of a dismissal; as in an action against a tenant for unlawfully holding over — of which the court has jurisdiction — but in which a distinct and direct issue of title is raised, of which the court cannot take cog- nizance; (b) or, in like manner, where an action of trespass is brought in a police court, and the question of title arises — *Counter affidavits may be filed changes of venue are in general under an application for a change discretionary, even if there is no of venue ; and where this is done, counter affidavit. State v. Spur- the granting or refusing the mo- beck, 44 Id. 667. tion Is di-scretionary ; and unless (a)Morgan «. Lyon, 12 Wend. (N. the discretion is abused, a supreme Y.) 266. court will not review the decree. (Z»)Henderson «. Allen, 23 Cal.520. Hall V. Barnes, 82 111. 228. In Iowa CHANGE OF VENUE. 119 altliougli in Massiicliusetts the rciuoval in such case seems subject to the defendant's option.! c) Yet it has been held that where a statute requires a bill in chancery, relating to lands, to be filed in the county where the land lies, an equitable court may retain its juris- diction to decree the sale of real estate in another county, so far, at least, as that it cannot be collaterally questioned, if it has jurisdiction on general equitable principles, independently of the special and local jurisdiction given by the statute. (r/) § 123. The most usual and imperative cause for changing a venue proper in itself is that an impartial trial may be thereby secured. This may be based on the alleged ground that the judge is prejudiced. But the application in such case must be timely. The Wisconsin statute requires that, in a criminal case, "such change shall not be awarded after the next term succeeding that at which the accused shall have been arraigned, unless such petition states facts show- ing the existence of prejudice on the part of the judge un- known to the petitioner at any term of the court prior to the making and filing of such petition. "(«) And the right to apply for a change of venue may be waived by mere delay to apply early in the pending term. R. R. v. Mitchell, 74 111. 394. And especially by suffering two successive defaults — the first default having been set aside, and an application for changing the venue coming after the defendant is again de- faulted. Bank v. Krance, 50 la. 236. But in this, as in other changes, I suppose, the jurisdiction of the court would not be ousted merely by a failure to enter a transcript of the record on the minutes of the court at the first term.(/) General prejudice, also, is a ground of change. Where this is the ground it is not necessary to specify facts. A general allegation of the existing prejudice is sufiicient be- cause of the vague and indefinite nature of even actual and general prejudice existing in a community at large. Taylor (c)Leary v. Keagan, 115 Mass. 558. (<')State v. Rowan, 35 Wis. 305. (fZ)Britain v. Cowan, 5 Humph, (/^Calhoun v. State, 4 Humph. f(Tenn.) 316. 477. 120 CHANGE OF VENUE. V. Gardiner, 11 R. I. 182. As, where a jury cannot be im- paneled,(^) or the people are prejudiced against a prisoner.(/i) And it is imperative where the facts appear. (i) Indeed, usu- ally, the court has no discretion, (^■) and parties may change, by consent, without a petition to the court, (A;) in a civil case. It is held that in actions at law a change of venue for the prejudice of the judge cannot be had on the apiDlication of some only of several defendants, whether joining or severing in their defences; but all must unite in the application. Rupp V. Swineford et al. 40 Wis. 28. A recusant witness, however, cannot, in proceedings for -contempt, apply for a change of venue on account of alleged prejudice of the judge or justice of the peace. State v, Neicton, 62 Ind. 517. But, in a criminal case, while the place of trial is changed, the indictment may, as to venue, remain unchanged. (/) In New York, even the prosecution has a right, in order to secure an impartial trial, to remove a criminal case, by certiorari, to a higher court; and, moreover, where a cause is removed as to one of several defendants it will be removed as to all, although the defendants are entitled to a separate trial. (m) And, in such case, the indictment itself may be removed, making a total instead of a partial transfer, as where a trial is changed but the indictment not. In New York, where tliere have been two trials in a civil case, and disagreement of the jury in each, and it is apparent that, on account of prevailing excitement, a trial cannot be had, a motion for change of venue will be granted. (w) But there is no necessity of an experiment in a criminal case by trying the cause or impanelling a jury therein, in order to justify a public prosecutor in taking a change on the (5r)Ibid. (wi)People v. Baker et al. 3 Park (/OClark «. People, 1 Scam. 120. Grim. 188. («)Burrows v. People, 11 111. 121. In Louisiana, by statute, a prose- (;■) Walsh®. Ray, 38 111. 30. cuting attorney may apply for a (A;)Picrson v. Finney, 37 111. 29. change of venue. State «. McCoy, (Z) People V. Vermilyea, 7 Co wen, 29 La. An. 593. And see below. 1C7. (7i)Messenger «. Holmes, 12 Wend. 203. I CHANGE OF VENUE. 121 ground that a fair ami impartial trial cannot be had,(o) as in a case of libel. And, on the other hand, it is not indis- pensable that there should have been an ineffectual attempt to obtain a jury in order to justify defendants in a criminal case to apply for a change. (/>») § 124. In New York, another ground for changing venue is that the cause of action arose in another county. And a motion on this ground by a defendant is imperative, unless the plaintiff" will stipulate to give material evidence in the county where suit is brought, which may defeat the applica- tion, (r/) But this whole matter seems anomalous and in con- travention of the general rule as to transitory actions, and sometimes actually takes on the form of balancing and bar- gaining, (r) And by statute in New York, the supreme court may draw a pending cause to itself in order to change the venue. Quinu v. Van Pelt, 12 Hun. G82. § 125. Another similarly anomalous ground of change, in the same state, is that for the convenience of witnesses, not, however, availing in strictly local actions. (s) Where appli- cation is made herein it should appear what it is expected to prove by the witnesses. (f) Where a change is made by a public prosecutor, on the ground of prejudice, and it appears in opposition to the application that the defendants' witnesses are poor, a change may be granted and the condition imposed that the prosecutor shall make provision to pay the necessary expenses of such witnesses. (») The nature of the action is immaterial in such a case, except it must be transitory. The ground is, the number and residence of witnesses, and their value in the cause. (r) But an application may be resisted on the ground that the plain- (o)Peoplew. Webb, mill, 179, (the (/-jWoods v. Van Rauken, 1 celebratedJ.Fennimore Cooper libel Caines, 122. case.) (.s)Park v. Carnley, 7 How. Pr. (p) People ti.lt. R. Co. (indictment.s 355. for public nuisance,) 4 Park Crim. ()!) American Exchange Bank e. €(•::. Hill, 22 How. Pr. 29. r/jHentley v. Weaver, 1 Johns. (w) People*). Baker, 3 Park Cr. 181. : ases, 241. (t)jAnonyniou.s, 1 Hill, (JUS). 122 CHANGE OF VENUE. tiff has witnesses in the county where the venue is laid.(»-) And the mere residence of witnesses is not sufficient ; it must also be shown that evidence will be given where the cause is to be removed of some material fact which happened there. (x) That witnesses reside near where the venue is to be removed, but out of the state, is no sufficient ground of change. (?/) Where the venue is properly laid, a motion to change should 1)0 made after issue joined, otherwise not. (2') But how vastly better is the deposition arrangement, resident and non-resi- dent, is evident at a glance, I think; being more direct, and less expensive and dilatory. § 126. It is a general principle that the transfer of a cause must be in the exact manner prescribed by statute. (a) And where only a part of the proceedings necessary is perfected, the jurisdiction is not transferred — as, for instance, where one fails to have the cause duly entered in the court to which venue is sought to be changed, or even sometimes where the clerk is not paid the entry fee. (ft) Nothing but an actual removal, in accordance with the statute, can impair an already duly at- tached jurisdiction. (c) A mere order of transfer does not divest it; nor has the substituted court any jurisdiction until the papers reach the clerk thereof ; (J) nor, in a criminal case, (in Texas,) unless the defendant be recognized to appear before the court to which the venue is changed. (c) But, where a transfer is fully made, the substituted court, in a civil case, has as plenary power over the case as if origi- nally commenced there; and, where the records of one court are transferred to another, judgments formerly rendered in the prior court are under the same control as judgments rendered in the succeeding tribunal. (/) § 127. Accordingly, courts may refuse, as well as grant,. (?r)Du Boys v. Fronk, 3 Gaines, (a)West t>. State, use, etc., 2 Eng. Itf). ' 293. (xlGourley*. Shoemaker, 1 .Johns. (d)Rice «. Nickerson, 4 Allen, 67. C"as. 392. (c)McMurray's Adm'r v. Hopper. (2/)Canfield v. Lindley, 4 Cow. 43 Pa. St. 469. 532. ((i) Simpson v. Call, 13 Flor. 337. (s)Hubbard «. Ins. Co. 2 How. Pr. (e)State v. Butler, 38 Tex. 560. 152. (/)Clark v. Sawyer, 48 Cal. 138. CHANGE OF VENUE. 123 changes of venue where the imperative statutory requirements are not met. And, in some cases, a sound discretion is to be exercised; as, for example, the probable dispatch or delay of suits, on change, where the ground of application is the con- venience of witnesses. ((/) And where, on the ground of prej- udice, a change is sought, a court will not presume that an impartial trial cannot be had merely because the parties dif- fer in politics, and there is a strong party spirit bearing against the applicant. The requisites, in such a case, are something like this: that the inhabitants had prejudged the question at issue, or were especially interested in it, or that, for certain reasons, they entertained personal iH'ejudice, or that the opposite party was a person of uncommon influence in that community. (//) In a turnpike case, a cause will not be changed because of an allegation that the disposition of the people is averse to turnpikes, (i) nor any cause, as libel, merely because there is a strong excitement prevailing as to the subject-matter of the suit.(;) Hence, the mere fact that a county is the plaintiff, in an action for the recovery of a forfeiture, is not a sufficient ground for an application ta change the venue. State v. Merriheir, 47 la. 112. Where the motive is evidently delay, a motion may properly be refused; as where a plaintiff agreed to the defendant's desire for change, on condition that he would accept short notice for trial, which the defendant refused, without showing that he could not prepare for trial on short notice. (/i) And so an application must be timely, and laches will waive a right of change. Hoffman v. Sparling, 12 Hun. 83; Qiilnn v. Van Pelt, Id. 633. It is held, in New York, that in an action in the nature of a quo warranto the place of trial may be laid anywhere in the state, on the ground that the people are a party whose resi- dence is co-extensive with the state ; and so, where such an action was pending against one for an alleged usurpation of l.9)King ». Vanderbilt,? How. Pr. (?)Turnpike Co. v. Wilson, 3 3sr). Caines, 127. (A)Zobieskie v. Bander, 1 Cainea, (jjBowman «. Ely, 2 Wend. 251. 488. (Z-)Smith v. Prior, 9 Wend. 499. 121 CHANGE OF VENUE. the office of state treasurer, it was held that he could not be allowed a change on the ground that he resided in another county at the commencement of the suit.(Z) I am unable to perceive the reason of this. The reason assigned does not seem to be adequate, or even appropriate. § 128. Where an act of the legislature transfers causes from one court to another, the act itself is notice to the par- ties, (/n) In changes made hj application of a party, it may be necessary to serve notice of the rule for change. (//) But not even this, in most states, I presume. But where it is required it is imperative. Taylor \. Lucas, 43 Wis. 156. § 129. In general, venue is changed to an adjoining county ; but it may be changed to a remote county when necessary, (o) But if to a remote county the entire removal must be made at once, since successive changes are not allowable at the instance of the same party. Each party exhausts his right by a single exercise of it, (Hutts v. Hutts, 62 Ind. 240,) un- less the cause on which a second application is based is shown not to have existed when the first change was granted. Schaentgen v. Smith, 48 la. 359. Thus the New York criminal court, so holding, remarked : "However, there is no express limitation; and if the necessity T7hich may require any change should call for a more remote county that should be selected. In this case it is probable that the constant intercourse between the inhabitants of New York and the adjoining counties, and the free circulation of the newspapers of the city in its vicinity, have effected an extensive coincidence of sentiment, and the embarrassment in obtaining a fair and impartial trial in an adjoining county would be very great. I must, therefore, direct that the trial shall be had in a remote county, "(o) But there cannot be a second change in the same cause. State v. McGeghan, 27 Ohio St. 284. (See preceding paragraph.) Sometimes, by statute — as in Illinois — a change of venue in an action pending before a justice of the peace takes it (Z)People V. Cook, 6 How. Pr. 44S. (m)Shean v. Cunninirliam, 6 Bush, 124. (n) Smith «. Sharp, 13 .Johns. 466. (o)Feople v. Baker, 3 Park Crim. 198. CHANGE OF VENUE. 125 imperatively to the nearest justice. In Minnesota a cause cannot be thus removed on the ground of prejudice. But this is exceptionaL(p) § 130. It is a general principle, I judge, that where there are joint defendants they must all unite in an application in order to change the venue, (r/) and it is held, accordingly, that where the maker and indorsers of a promissory note are sued together, the indorsers alone cannot successfully apply for a change of venue; the maker must also apply. (r) But the rule is different where one of them has suffered a default ;(.s) and, in such case, the whole cause is removed. (^) § 131. It has been held that where provisional courts are established because of the necessities arising from a state of war, and these courts entertain jurisdiction of suits which are pending when the regular courts are re-established, this jurisdiction will not be lost, or ousted, merely by the re- establishment of the regular courts. (**) This, however, rather pertains to an ousting of jurisdiction than to a mere change of venue. See chapter X., supra. (p)Cooper V. Brewster, 1 Minn. 96. (<)Wiglit v. Meredith, 4 Scam. 360 ; (g)Sailly v. Button, G Wend. 508; Hitt «. Allen, 13 III. 592. Rupp «. Swineford, supi-a. (M)Reynolds v. McKenzie, Phill. (r)Legg«.Dorsheim,19 Wend.700. Eq. (JST. C.) 54. (e)Chacet>. Benham, 12 Wend. 198. 126 TERMS OF COURT. CHAPTEE XVI. TERMS OF COURT. 4 132. Must be as prescribed b}^ statute. 133. What is a compliance. 134. Mistake in statute — discretion of judge. 135. Extension of terra. 13G. Change by .statute — notice to parties. 137. When term is to be extended. 138. Term regarded as one da}'. 139. Ettect of lapse of a term as to sureties on a recognizance. § 132. When a statute prescribes a term time, it is essen- tial to the jurisdiction that it should be exercised at that time ; and if it transacts business at a different time, its pro- ceedings will be void. Different courts may be assigned to different terms, notwithstanding a constitutional provision that all laws concerning courts shall be uniform. Karnes v. The People, 73 111. 274. The rule is that where the law authorizes a court to do an act it is meant that the court, in term time, must do it, and not the judge, in vacation. That is, a court has no jurisdiction, even with consent of par- ties, to enter, in vacation, a decree as of a past term, where a statute does not so provide expressly. Puget Soitnd Agrl Co. V. Pierce County, 1 Wash. Ter, 75. And, on like principle, where a statute limits a time for an appeal, consent of jmrties cannot waive it so as to give jurisdiction to an appellate court. Stark v. Jenkins, Id. 421. And so, unless expressly authorized by law, a judge has no authority to appoint a receiver in vacation. Newman v. Hammond, 46 Ind. 119. Although if the term, by mistake, begins a week too soon, the transactions of the second week will be valid. (a) However, (a)Garlick v. Dunn, 42 Ala. 404. TERMS OF COURT. ' 127 "there are courts reqiiiretl to be kej^t open all the time for cer- tain purposes. (/;) § 133. If a term is to ojjen on Monday, by the statute, it has been held in Tennessee (c) a sufficient compliance if it opens on Tuesday, on the ground, it seems, that it will l)e pre- sumed that an adjournment occurred from Monday to Tues- day, in the regular way; and adjournments will always be presumed when necessary to support the validity of proceed- ings had.((^) And so, where the law allows a court to adjourn, before the close of a term, to a period beyond the limits of the term, or where it adjourns before the close of the time limited until the next term, the adjournment thus is to be regarded as wholly discretionary, and reasons for it need not be given, unless under a statute expressly requiring the reasons to be stated. (tf) And it may properly be left to the discretion of a judge to appoint special terms, where the business requires it ; and then these have all the force of law, as the regular terms have.(/) And it may be so as to a supreme court. .Moore V. Paclarood, 5 Oreg. 32.5. The presumj)tion of regularity, however, fails under a pro- tracted postponement of opening the term ; as, for example, where a judge attempted to hold the regular term seventeen days after the time, it was held that the term had lapsed, and all the proceedings were coram nonjndlce, and void.(r/) But if a term fails, all causes are continued till court in course, (Whitman v. Fislicr, 74 111. 147;) and if by accident, as by (('y)State ex rel. «. Judge, 21 La jKljour.nurnt Willis «. Elam, 28 An. 733. La. A.n. 857. (c)Henslie v. State, 3 Heisk, 202. Where there !.« no. sucli limitation (d)Tallmt J). Hopper, 42 Cal. 398; by statute a term continues until Springbrook Uoad, 64 Pa. St. 45] ended bj-^ tinal order of adjouru- (e)C"asily v. State, 32 Ind. 64. nient, or by the expiration of the And so it is held in Louisiana, period prescribed by law, and the that, where a statute limits an ad- sittings of the court are within the journment as to time, a judge may ab.solute discretion of the court. adjourn for that period, and then Laiiadie v. Dean, 47 Tex. 90. immediately adjourn again for a (/jBlimm «. Commonw. 7 Bush, like period, if the statute does not 32>'t. in terms prohibit more than one ((/)State «. Roberts, 8 Kcv. 239. 128 TERMS OF COURT. fire, rendering it impossible to provide a suitable place to meet. Larkins Case, 21 Nev. 90. § 134. Where, by mistake, a law requires court to beheld in two places in the circuit, on the same day, it is in the dis- cretion of the judge to select which one he will hold; and under this election the proceedings will be valid, (/i) § 135. An adjourned term (not special) is not distinct, or indejDendent, but a continuance or prolongation of the present, and so an order of continuance to the next term passes the case to the next regular term; and it was held error, in one case, to try it at such adjournment, when it had by consent been continued to the next term.(/) A judge cannot voluntarily extend a term. Lilly's Case, 7 S. C. 372. And the expiration of a term usually deprives a court of all control over its judgments and decrees, at least so far as the merits of a case are concerned, its jurisdiction be- ing exhausted by the close of the term. Milam Co. v. Robert- son, 47 Tex. 222; De Castro v. Richardson, 25 Cal. 52; Dan- iels V. Daniels, 12 Nev. 121, and cases cited. And it has no power sua, sponte to correct its judgment at a subsequent term, unless for a mere clerical error, {Daviess Co. Court v. How- ard, 13 Bush, 1(I2,) nor vacate it; Latimer v. Morrain, 43 Wis. 107. But in Iowa the supreme court can, on motion, vacate a judgment at a succeeding term, because there is no higher court to review it. Drake v. Smijthe, 44 Iowa, 410. § 13(3. Where a change is made by statute as to the time of holding a term, parties in court or served with process are held to have notice and are bound to appear, without further service, at the time to which the session is thus changed. (_/') § 137. In Indiana, where a trial is pending and in prog- ress at the time fixed by law for the expii-ation of the term, the term is deemed to extend to the close of the trial(/t) — a good rule, though liable to abuse if not guarded. {^)Brock V. Gale, 14 Flor. 531. criminal case. Carroll v. Common- («')H:\wyer f). Bryan, 10 Kan. 109. wealth, 84 Pa. St. 107. A court is (_7) Insurance Co. v. Dickerson, 28. to be considered always open as to la. 274 a case submitted to a jury. Ed- (/l-)Dorsch«.Ro.senthall,39Ind.211. wards v. Territory, 1 Wash. Ter. And so, in Pennsylvania, in a 195. TERMS OF COUUT. 120 § 138. A term of court is regarded, for most purposes, as a single day, so that any recovery therein will be held to relate to the tirst day ;(7) but not as to the lien of judgments. § 139. In a recognizance the lapse of a term will not dis- charge the sureties; but the recognizance will stand contin- ued until the next regular term, and then a forfeiture may be taken on failure of the principal to appear, (m) (?)Manchester v. Herington, 10 N. (m)Laiidis v. People, 39 111. 79. Y. 164. T.l— 9 130 INCIDENTAL JURISDICTION. CHAPTER XVII. INCIDENTAL JURISDICTION. $ 140. In general. 141. Regulation of practice. 142. Publication of proceedings — power to prohibit. 143. Amendments, discretionary. 144. Power over process and officers. 145. What is a pending suit. 146. Supplementary proceedings. 147. Over boats in navigable waters. § 140. There are of necessity many things resting exclu- sively in the discretion of a court as to pending causes, and the proceedings, which we need not particularly notice in detail;* but there are some incidental to the general exercise of jurisdiction which we may refer to as illustrations and examples of the whole. We shall also see that sometimes, as to subject-matter, there is a kind of jurisdiction which is but incidental or subsidiary to other than law courts. This we shall explain in its proper order, first considering that which is incidental to the adjudication of causes coming in the reg- ular order of things, before legal and equitable tribunals. § 141. A court may regulate the convenience and facility of practice, I suppose, to any extent which does not contra - Tene any statutory provision; and so may establish binding rules, a non-compliance with which will banish parties from the courts or dismiss a pending action. And this has been carried so far as to hold that a court may adoj)t a rule com- *Andgro.ss abuse only will justity as also all orders made in a cau;diction is 29. But a court cannot institute wholly dependent on rightful gen- proceedings, or make motions, in a eral jurisdiction of a pending cause, cause sua sponte. The.se must be Gay «. Eaton, 27 La. An. IGG. invoked by the interested parties, INCIDENTAL JURISDICTION. 131 pelling a defenJant to make an affidavit of merits, or suffer a default ; and that this does not contravene the provision of the constitution allowing a trial by jury.(rt) Again, it has been decided that a court may oblige an appellant to give notice of the time and place of entering an ajDpeal, and of the names of the sureties offered. (6) § 142. A court has power to protect itself by forbidding the publication of proceedings pending therein, but this cannot be done by injunction, but by means of an order regularly made in the cause. Said Judge Duer, in a certain case : "Sitting as judge in equity I am satisfied that I liave no power to continue this injunction. I do not believe that a court of ecpiityhas ever attemi)ted to restrain the publication of the proceedings in a pending action at law, either upon the grounds set forth in this complaint, or upon any other; nor do I believe that, had the jurisdiction ever been claimed, the <;ourts of law would have submitted to its exercise. It would have been regarded and resisted as a manifest usurpation of power. It is the exclusive privilege of the court in which the action is pending to determine whether, for any reason, the publication of the proceedings ought to be forbidden; and, where the prohibition is deemed to be iiecessaiy or proper, it can only be regularly made by an order in the cause. The case is not altered by the fact that the action is pending in this court, which is now a court of equit}' as well as law. '"(c) § 143. And, in the absence of statutory requirements on the matter, all amendments of the pleadings of parties are within discretion, and may accordingly be allowed or refused, as the court may deem most conducive to justice under the circum- stances, ((/) although a court cannot, of course, in any way con- trol a statute.* And so a record ma}' be amended, even in (ajViinatta v. Anderson, 3 Binn. McCord, 74 111. 34. So that a conrt (Pa.) 422. is absolutely powerless to abrogate (/;)Hany v. Randolph, Id. 27S. any statutory provision by a rule. (<')Wood V. ]\rarvine, 3 Duer, (N. Ilayward ». Kamsey, Id. 379. And y.) 67.5. the legislature has the power to (r?).Jackson v. Warren, 32 111. 337. require alt rules to be approved by *For the legislature can authori- the supreme court, liolling Mills lively regulate practice. Yoe v. Co. v. Robin.son, 34 Mich. 428. Nor 132 INCIDENTAL JUPJ!- DICTION. material matters, as to the parties to the suit, but not, in- deed, in a way prejudicial to third parties, for "there is no doctrine resting on a more stable ground, both of reason and authority, than that all material amendments of a record must be made with a saving of intervening rights acquired by third persons. In an order allowing an amendment, it is proper to express this by way of removing all doubt. But, whether expressed or not, the law makes the reservation. For what is the judgment of a court '? It does not reside, unspoken and unwritten, in the breast of the judge. It is not to be sought in the minutes or memoranda which the judge makes upon his own docket, and which the law does not require him to make, but which are merely kept by him for his own convenience, and to enable him to see that the clerk accurately makes up the record. These minutes, it is true, are a proper means of amending a record; but, until the amendment is made, the public can act on no other means of information than the official records of the court as kept by an officer appointed by the law for that purpose. How often has a court power thus to change any provision or maxim of common law; as, for example, to make a rule that a special appearance in a cause shall have the force of a general appearance. Hufl! v. Shepard, 58 Mo. 242. And where a statute provides for the order of docketing causes, and trying them in their order, a court cannot by rule establish a different order. Angel «. Mfg. Co. 73 111. 413. A court can enter judgment nimc fro tunc. Fuller v. Stephens, 49 la. 376. In the absence of a statute, and within the limits of the law, a court is the exclusive judge of the expe- diency of its own rules. Gannon V. Fritz, 79 Pa. St. 303. As, lor in- stance, in regard to the o:der of business. State v. Sawyer, 5(5 N. H. 175. And may excuse, at dis- cretion, an infraction of its rules; as, in setting aside a default at the term Avhen enteied. Sheldon v. Risedorph, 23 Minn. 518. And es- pecially when a default is taken in the absence of service on the de- fendant. Wyraan ». Hoover, 10 S. C. 135. Or permit an act to be done after a time prescribed. Martina «. Lowenstein, 68 N. Y. 456. It is held in Wisconsin, and, I think, justly, that a supreme court may appoint janitors free from the control of the legislature, though in the state capitol. Janitor Case, 35 Wis. 410. A court may regulate its own sit- tings during a term. Labadie v. Dean, 47 Tex. 90. One court cannot properly com- municate with another except under its seal. Stitson e. Com'rs, 45 Ind. 173. INCIDENTAL JURISDICTION. 133 have this and other courts expressed the maxim that 'a record imports absolute verity j ' * * * * Parties can- not be held to notice of what has no legal existence, and we should be going quite too far were we to hold tbem to notice of informal memoranda on the docket of the judge, by which the record might possibly, at some future time, be amended, and require them to act as if such amendment had been already made. The public is bound by the record of a court, and, on the other hand, has a right to abide by it. What we have said in regard to the judge's minutes applies, with at least equal force, to the unsigned and undated memorandum uj)on the execution docket. "(c) The amendment of the records by the court, sua sponte, may be made at any time during the judgment term.(/) After that only by motion of a party, and on notice given. § 144. The court exercises a plenarv power of control over its i^rocess and over the officers* who serve it, until the rights of third persons intervene. The Alabama court say, on this matter: "There can be no doubt of the jurisdiction and j)ower of the common law courts over their process, and also over the officers who execute it. And, in the due exercise of this power, such courts may, ujDon motion, not only quash and set aside their judicial process and the returns made by the officer under it, but may, also, at any time before a deed is executed to the purchaser, and approved of and acknowledged and entered of record, upon a proper presentation of facts, quash the process and set aside the sale, because, up to that time, no title has been perfected in the purchaser to the proj)- erty so purchased, and when he conies before the court to («)McCormick v. Wlu'eler, 36 111. v. Slnte, 2« Ark. 417. And gener- 12(>. all}' a court has the right to compel (/)Smith «. Vaiulcrburg, 46 111. the performance of mini.sterial acts 36. by a summary rule. Duncan v. *B()mewhat strongly stated, I Baker, 13 Bush, 514. If a rule is think. made against a sheriff, the court In Arkansas a court may sus- may modify it so as to meet the pend a clerk for misdemeanor in justice of the ca.se. Gibson v. Gib- drunkenne.ss, or illegal acts. This son, 7 S. C. 3.J6. power is couferred by statute. Coit 134 INCIDENTAL JIJEISDICTION. have his deed acknowledged and entered of record, or when it is made to appear, upon the motion of either the plaintiff or the defendant, that the process of the court has improvidently issued, or, through the fraud or neglect of the officer or of the parties, it has been abused, to the prejudice of the rights of either the plaintiff or the defendant in execution, the court has the power, and it is its duty, to withhold its assent to an affirmance of such acts, and to set them aside that a new and more regular proceeding may be had. This power is indis- pensably necessary to enable the court to execute its judg- ment ; and, so far as the mere setting aside of the process or the return on it is concerned, the power exists as well after as at the return term of the process, because this is a proceeding between the parties to the proceeding and the officers of the court in which the rights of third persons are not involved. "But after the court has approved the sale, and caused a deed to be acknowledged and delivered to the purchaser, whereby he has had assured to him a perfect legal title to the property, should the court, at a subsequent period, upon the ground of fraud, accident or mistake, or for any irregularity in the proceedings which must of necessity in most instances arise out of one or other of these causes, upon motion assume jurisdiction, and the power to hear and determine the merits of such motion, it would thereby, in effect, take jurisdiction of matters not projDerly cognizable before it, even upon a reg- ular proceeding instituted in such court for that purpose, for these are all matters properly cognizable before a court of chancery ; and, whether presented by bill or motion, does not in anywise change or affect the question itself. The pur- chaser, when he leaves the common law court with perfect legal title, sanctioned and approved by the court, is no longer to be considered before that court; his rights are matured, and he is so far disconnected from the proceeding that he is not affected with notice of any after order made in regard to his title, and when brought before the court again by notice and motion, or otherwise, he stands there as a party defend- ing his right to hold an estate to which his legal title is per- fect ; and when the validity of the title itself is assailed, for INCIDENTAL JURISDICTION. 135 frcaud, accident or mistake arising out of the irregularity ol the acts or proceedings of the parties, he has a right to be heard before a tribunal that can rightfully exercise jurisdiction in such matters, with power and j)roces8 to bring all parties in interest before it, to put them upon their consciences to answer, to cancel deeds, to restore possession, and award equitable compensation. "In view of the general powers of the common law and chancery courts, we feel clear on this point; and although there are several reported cases which would seem to question the correctness of our conclusions, yet, when carefully exam- ined, they will be found to have been made under statutes which authorize such summary proceedings. "(r/) § 145. A suit is regarded as pending until the judgment is not only rendered, but satisfied. And no court will enter- tain a distinct suit designed to accomplish nothing beyond what can be effected by orders in a cause, or a rule on the parlies therein, (/i) And it is a business of a court to give full effect to its rules; as, where one obtains possession of property by a fraudulent use of a rule of court, or wrongfully retains possession, though for a temporary purpose, without fraud, it is the duty of the court to dispossess him summa- rily. (?) And so it is that, as we saw in the preceding section, a court of law will exercise an equitable jurisdiction over the execution of its own judgment and j)rocess, if it can do as complete justice as a court of equity could do.(j) Moreover, on the explicit ground that "when jurisdiction has once attached it continues necessarily, and all the powers requisite to give it full and complete effect can be exercised until the end of the law shall be attained," it is competent for a court, even of local and inferior jurisdiction, to send final process anywhere within the state, and outside of its territorial limit- ation, in any case where jurisdiction to render judgment has (,7)State Bank v. "Woland, 8 Eng, (i)Winters v. Helm, 3 Nev. 397. (Ark.) 301. (j) Watson v. Reissig, 24 111. 284; (A)Mann v. Blount, 65 N. C. Mason v. Thomas, Id. 287. 101. 136 INCIDENTAL JURISDICTION. properly been acquired; (A) althongli, of course, the manner of doing this may be prescribed by statute. And when money is collected on execution, its disposal belongs to the court issuing the execution. (7) § 146. By the New York code — as also in Wisconsin, and elsewhere — is established an incidental jurisdiction in what is called supplementary proceedings — a kind of new suit, but strictly subordinate to the original suit, answering, indeed, to a creditor's bill in equity. It consists in an examination of a judgment debtor, in order to discover his assets, and is, therefore, in the nature of an equitable proceeding, and is a substitute for a creditor's bill. However, it is an action in the original cause, and is so regarded as a kind of additional or equitable execution, penetrating further than an ordinary execution. (w) Yet it is not imperative; but, at an}" time before the appointment of a receiver, the judgment creditor can abandon the supplementary proceedings, and bring a creditor's bill.(»)* Where there was a parol agreement between parties that the suit pending was to be discontinued, without costs, and, by mistake, a judgment for costs was entered against the plain- tiff, notwithstanding the agreement, whereon an execution was issued, and then supplementary proceedings were insti- tuted, it was held the plaintiff could not vacate the order for (7.)People ex rel. v. Ban-, 22 111. a judscment of the supreme court, 243. on an order of a county judge i.ssued (^)Bevard v. Young, 26 La. An. in supplementary proceedings there- 598. on, both courts have so far a con- (7?«)Sale V. Lawson, 4 Sandf. 718; current control of the order as that Gould V. Torrance, 19 Ifow. Pr. 561. either can punish disobedience as a Different creditors may have contempt. Tremain v. Richardson, supplementary proceedings pend- 68 N. Y. 617. ing at the same time in Wisconsin, A demand must be made for and, when a receiver is appointed, property of the debtor before sup- the court determines the matter of plementary proceedings can be in- priority among them. Kellogg v. stituted. Bank v. Wilson, 13 Hun. Caller, 47 Wis. 665. 232. («) Bennett v. McGuire, 58 Barb. See State «. Becht, 23 Minn. 411; C;i4. Rand v. Hand, 78 N. C. 12, as to *Where an execution is issued on supplementary" proceedings. INCIDENTAL .lURISDICTION. 137 jliis examination on the supplementary proceedings on the ground of the mistake in entering the judgment — his remedy !)eing a direct application to open the judgment. (o) Indeed, no case, can the merits of the original action be brought ito question in such proceedings (/>) except where there is a mnt of jurisdiction in the original suit.((/) § 147, The authority of a state over boats in its navigable mters may, perhaps, be regarded more as an incidental than a direct result of its essential jurisdiction. And so, in regard to a statute of Missouri in regard to collisions of steamboats on the Mississippi and other rivers, a question came up, in a certain case, as to the application of the statute, when the boats were owned by non-residents. The court maintained jurisdiction, and said: "The only question in this case is, whether, under our statute concerning boats and vessels, the courts of this state have jurisdiction where the boat employed in navigating the waters of this state is owned, in whole or part, by citizens of other states, or foreign countries. It is very clear that if the non-residence of one or more owners of a steamboat divests the jurisdiction of our courts in such proceedings, the statute is an entire failure. The purpose of the law is defeated in the very cases where its provisions are most needed. The main object of the law is, undoubtedl}', to give redress against the boat without requiring the party aggrieved to look up the owners. Probably a large proportion of the boats which navigate the waters within this state, and upon her borders, are, either in whole or in part, owned by citizens of other states ; and to give a construction to our statute which would oust the jurisdiction of our court upon the discovery of the fact that there was a non-resident owner, would, virtually and substantially, annul the law. But we are not apprised of any provision in the federal constitution, or any principle of inter-state comity, which requires ^uch a construction to be given to the law. Citizens of other states, {o)Giir(]ner V. Lay, 2 Daly, 114. (7)Griffin v. Doiuinguez, 2 Duor, (/))0'Neil V. Martin, 1 E. D. Smith, 657. 405. 138 INCIDENTAL JURISDICTION. or of foreign countries, who l)ring or send their property -within the jurisdiction of this state, have surely no ground of complaint if that property is treated precisely as it would be if its owners resided here. They cannot claim exemptions which our own citizens are not allowed. No principle of comity requires a discrimination in their favor. "(r) This will be further noticed in relation to admiralty jurisdiction in. Part II., infra. (r)Yore v. Steamboat, 26 Mo. 428. INCIDENTAL JUrU.-iDlCTION AS TO CHURCHES, ETC. 130 CHAPTEE XVIII. INCIDENTAL JURISDICTION AS TO CHURCHES AND OTHER VOLUNTARY SOCIETIES. § 148. In general. 140. As to lodges. loO. Action against secret organizations, etc. — boards of trade. 151. Cliurcli regulations. 152. Forfeiture of property in church by members seceding. 153. Interference with church affairs. § 148. So far as churches, lodges, etc., are incorporated, they fall under the same principles of control that other corpora- tions do, and hence the jurisdiction they may invoke in their behalf, or that may be invoked against them, is merel}' of the direct and ordinary character; since it is a well-settled rule that, as to legal proceedings for or against them, corporations are individual persons. But the matter is essentially differ- ent when judicial cognizance is taken of the internal rules and actions thereunder of ecclesiastical organizations, and similar institutions. In England, the ecclesiastical courts have been regarded as part of the national judicial system, and were therefore endowed with a large measure of judicial authority. But they hold no such rank here ; and, moreover, they are, in a degree, under the supervisoiy authority of the courts, so far as necessary to prevent flagrant abuses of discii^line over their members. They may, uncontrolled, establish such rules and regulations as they please, and therein they will not be med- dled with, if they keep within the compass of their own rules, and these do not contravene, in any way, individual rights, as defined by the laws of the land. § 149. For instance, referring first to lodges, they cannot be allowed to impair the rights of property as against the will 1 10 INcMnKNTAli .TUIUSDICTION AS TO CHURCHES, ETC. of tlu' owiuT. Said llroaui J., in an Odd-Fellow case, in New York: "The by-laws and regulations of these voluntary associations may all be very well in their place and sphere, and may command generally the obedience and submission of those upon whom they are designed to act; they cannot, how- ever, have the force of law, nor impair or affect the rights of property against the will of its real owners. So long as the meml)ers of these bodies yield their assent, or concurrence, it is all very well ; the law interposes no obstacle, or objection. But when orders and decrees of the character of those referred to are resisted, [as in confiscation by a grand lodge of subor- dinate lodges' property,] and the owners of property refuse to be deprived of it, then it will be found that property has rights, and the courts of justice have duties of which the l)laintiff in this action seems to have an indifferent conception. The courts of justice cannot be called upon to aid in enforcing the decrees of these self-created judicatories. The confisca- tion and forfeiture of property is an act of sovereign power, and the aid of this or any other court will not be rendered to enforce such proceedings, or to recognize legal or supj)osed legal rights founded upon them. "(a) And, in the same case, SeldcH, J., said: "Were it distinctly averred that the defend- ants had subscribed the constitution of the grand, as well as of the subordinate lodge, I should still be of the opinion that public policy would not admit of parties binding "themselves by such engagements. The effect of some of the provisions of these constitutions is to create a tribunal having the power to adjudicate upon the rights of property of all the members of the subordinate lodges, and to transfer that property to others; the members of this tribunal being liable to constant fluctuations, and not subject, in any case, to the selection or control of the parties upon whose rights they sit in judg- ment. To create a judicial tribunal is one of the functions of the sovereign power; and although the parties may always make such tribunals for themselves, in any specific case, by a submission to arbitration, yet the power is guarded by tne most cautious rules." A contract that the parties will submit («) Austin fl. LLMrluo-, 16 N. Y. 124. INCIDENTAL JURISDICTION AS TO CHURCHES, STC. 141 confers no power upon the arbitrator; and, even where there is an actual submission, it may be revoked at any time. The law allows the party up to the last moment to ascertain whether there is not some covert bias or prejudice on the part of the arbitrator chosen. It would hardly accord with this scrupulous care to secure fairness in such cases that parties should be held legally bound by the sort of engagement that exists here, by which the most extensive judicial powers are conferred upon bodies of men whose individual members are subject to continual fluctuation." And, quoting from Lord Eldon, in a case where a bill was brought to obtain the possession of books, papers, decorations, dresses, etc., of a Freemason lodge, {Lloyd v. Lorlng, 6 Yes. 733,) it was held that "a bill might be filed for a chattel, the plaintiffs stating themselves to be jointly interested in it with several other persons, but it would be a very dangerous thing to take notice of them as a society having anything of a consti- tution in it. In this bill there is a great affectation of a corpo- rate character. They speak of their laws and constitution, and the original charter by wiiich they were constituted. li\ AlUii V. Duke of QueciisJnirtf, Lord Thurlow said he would convince the parties that they had no laws and constitutions. * * * That this court will hold jurisdiction to have a chattel deliv- ered up I have no doubt, but I am alarmed at the notion that these voluntary societies are to be permitted to state all their laws, forms and constitutions upon the record, and then to tell the court that they are individuals, etc. The bill states that they subsist under a charter granted bj^ persons who are now dead, and, therefore, if this charter cannot be produced the society is gone. Upon principles of policy the courts of this country do not sit to determine upon ciiarters granted by per- sons who have not the prerogative to grant charters." § 150. So we see the courts will protect and shield individ- ual rights of property, and refuse, accordingly, to aid such organizations to divest them under the force of their internal rules, and in accordance with the demands of their tribunals. But it seems, on the other hand, that a court will entertain an action against a secret organization for benefits guaran- 14:2 IXCIPKNTAL JURISDICTION AS TO CHURCHES, ETC. tied bv its rules, and will entertain in such an action the de- fence "that the member through whom the benefit is claimed was in his life-time expelled, and, under this, the replication Ihat the expulsion was not according to the constitution and ])V-laws of the society.(/0 As to boards of trade, I think the Wisconsin rule that the by-laws are subject to judicial con- trol, even as to conditions of membership, (State ex rel. v. ClKiinbcr of Commerce, 20 Wis. 63 ; Diekensen v. Chamber of Commerce, 29 Wis. 45; State ex rel. v. Chamber of Commerce, 47 Wis. 079,) is better than the Illinois rule, which strongly leans to the opposite, (People ex rel. v. Board of Trade, 80 111. 184; Fishery. Board of Trade, 80 111. 84; Baxter v. Same, 03 111. 14(5; Stiirges v. Same, 86 111. 441,) because membership in a board of trade may involve essential property rights or 2H"ivileges of trade. ^ lol. Church regulations are held in a similar control. It is well settled that to give the courts jurisdiction there must be an invasion of property or personal rights, for they will never interfere in this country merely where there is a relig- ious controversy, or in disciplinary matters, or in elections, or mere choice of pastors, or anything of the kind.(c) Thus far it is a purely ecclesiastical act, but where it has effect upon property the courts may interfere ^^^oaci hoc,(c) and no further. Yet the New York court, in the elaborate case just referred to, could not forbear admonition in so eloquent and forcible lan- guage that I am tempted to transcribe it, in view of the importance of the subject — for when laymen officially preach to the ministry, from a judicial pulpit, all the world should listen. Besides, the extract tends to illustrate the boundary of judicial interference : "This cause is of importance, not only in a legal point of view, but also of vast importance to the church and society interested in this litigation. Perhaps the clerical gentlemen who have been the principal actors in this case did not duly weigh the consequences, or there would have been more forbearance. Here were five ministers of (ft)Osfeola Tribe of Red ]Men «. Barb. fiS. where the subject is elab- Kost. Adm'r, 15 Md. 295. orately examined, and the ca.x , (cjSee Kobertsou c. Bullion, 9 selected. INCIDENTAL JUKISDICTION AS TO CHURCHES, ETC. 143 that j)eaceful and holy religion, to the truth and value of which all well informed and reflecting minds must assent, having, as the}' no doubt honestly believed, causes of com- plaint among them; but which, with all due allowance, I must think could and should have been adjusted without delay and without difficulty. But, unfortunately, a dilTerent course was adopted, and the consequences have been calamitous indeed. The hallowed and mystic union of pastor and church, ce- mented and strengthened by the friendship), the communion and the vicissitudes of thirty years — a period which assigns a generation to the grave — has been dissolved; the ties and associations of Christian brethren and sisters have been sev- ered and broken, and one portion of the church has expelled, or attempted to expel, the other from the enjoyments and con- solations of the Gospel ordinances, striking off over one hun- dred and fifty at once, of whom more than two-thirds were females ; and, finally, one of the most enlightened, benevolent find prosperous religious societies in the land has been rent by the elements of strife and plunged into sharp and expen- sive litigation for years. No man should judge another in mat- ters of conscience and duty. But the retrospect in this case is painful in every aspect, and must produce a wish for peace and reconciliation in every benevolent heart." The order was: "There must be a decree restraining the defendants from using the temporalities of the corporation for the support of Dr. Bullion's ministry, so long as he is under sentence of deprivation." And so, in regard to matters of mere discipline, the supreme court of Pennsylvania remark: "If, therefore, the relator is injured by the decree of the consistory, his remedy is by aj^peal to a higher ecclesiastical court; which, no doubt, (and it is indecorous to suppose otherwise,) will afford him redress by reversing whatever may have been done by the inferior court inconsistent with the canons of the church. That the power of the classis and synod is advisory only, matters not, as we cannot suppose their decision will be dis- regarded, and if it should be, it will be time enough to seek redress from the civil authorities. The decisions of ecclesi- 1-U INTIPKNTAL JURISDICTION AS TO CHURCHES, ETC. iistiral oourts. like every other judicial tribunal, are final, as tlifv are the best judges of what constitutes an offence against the word of God and the discipline of the church. Any other than those courts must be incompetent judges of matters of faith, ihsripline, and doctrine; and civil courts, if they should be so unwise as to attempt to supervise their judgments on matters which come within their jurisdiction, would only involve themselves in a sea of uncertainty and doubt, which would do anything but improve either religion or good morals. Vntil a final adjudication by the church judicatories we think tlie relator is without remedy by mandamus." (d) In Kentucky, the court soothed certain excommunicated members, trying to enforce their right to vote at church elec- tions even after they had been excluded, by the following pathetic exhortation: "The necessary consequences of the view we have taken of the proprietary or usufructuary rights of the parties is, that there can be no reversal of the decree on the errors assigned by the appellants. Having once asso- ciated themselves with many others as an organized band of professing Christians, they thereby voluntarily subjected themselves to the disciplinary and even expulsive power of that body. The voice of the majority has prevailed against them. They have, by that fiat, ceased to be members of that association, and with the loss of their membership they have lost all the privileges and legal rights to which, as members, they were ever entitled. Their only remedy now is, therefore, in their own bosoms, in a consciousness of their own moral rectitude, and in the consolations of that religious faith and those Christian graces which, under all temporal trials, will ever sustain the faithful Christian, and adorn the pathwny of his earthly pilgrimage. Their expulsion ought not to brand them with 'immorality.' In this record there is no proof of immoral conduct, in either the popular, the ethical, or the Biblical sense. They were expelled for alleged non-conform- ity and contumacy, adjudged against them without a formal trial or hearing, by a dominant majority, as fallible, perhaps, as themselves. Self -doomed to the uncontrolled will of a (d)German Kefornied Cliurch v. Seibert, 3 Barr. 291. INCIDENTAL JURISDICTION AS TO CHURCHES, ETC. 145 majority of a church selected by themselves, they can obtain no redress in tliis forum. If their sentence be unjust, the only appeal is to the omniscient Judge of all. "(f) Nevertheless, ecclesiastical organizations will be held to the limits of their own rules, strictly ; and the courts will look into their proceedings rigidly to see whether these are justified by the standing and fixed regulations or not, espe- cially where property is involved. And the principle of pos- itive interference is thus laid down by the Kentucky court : "While we recognize the principle as firmly and correctly established that civil courts cannot, and ought not to, rejudge the judgments of sjMritual tribunals as to matters within their jurisdiction, whether justly or unjustly decided, we cannot accept as correct the principle contended for in the argument for the apj)ellees that whether the synod had jurisdiction and j)owerover the subject on which it acted under the presbyte- rial system is a question purely ecclesiastical, to be settled by the synod itself and the general assembly. Such a construc- tion of the powers of church tribunals would, in our oj)inion, subject all individual and property rights confided or dedicated to tlie use of religious organizations to the arbitrary will of those who ma}^ constitute their judicatories and representative bodies, without regard to any of the regulations or constitu- tional restraints by which, according to the principles and objects of such organizations, it was intended that said indi- vidual and property rights should be protected. Especially is this 80 with reference to the powers of the higher courts of the Presbyterian church. Those powers are not only defined, but limited by the constitution. But if it be true, as insisted for the appellees, that the inferior courts and people of the church are bound to accept as final and conclusive the assem- bly's own construction of its powers, and submit to its edicts as obligatory, without inquiring whether they transcend the barriers of the constitution or not, the will of the assembly and not the constitution becomes the fundamental law of the church. But the constitution having been adopted as the supreme law of the church must be supreme alike over the (tf)Shannou v. Frost, 3 B. Mou. 261. V.l— 10 Ml'. INCIDENTAL JURISDICTION AS TO CHURCHES, ETC. MsscmMv aiul tlic people. If it is not, and only binding on tlio latter, the supreme judicatory is at once a government of despotic and unlimited powers. But we hold that the assem- My. like other courts, is limited in its authority by the law under whieh it acts, and when rights of property, which are secured to congregations and individuals by the organic laws of the church, are violated by unconstitutional acts of the higher courts, the parties thus aggrieved are entitled to relief in the civil courts, as in ordinary cases of injury resulting from the violation of a contract, or the fundamental law of a voluntary association. "If those having control of church property and privileges, in a Catholic or Episcopal organization in this country, should attempt to transfer them to the use of another sect or denomination, in violation of the fundamental principles of such organization, and to the destruction of the very objects for which their authority was conferred; or even if a majority of the members of a Baptist or other congregational church should determine to sell and appropriate to individual use their church edifice, erected, by means of individual donations or the contributions of its members, as a house of worship, can it be said that a civil court may not interpose to give relief or protection against acts so flagrantly void for want of jurisdic- tion or authority for their commission ?"(/) § 152. It is held, in Pennsylvania, that those who hold property as a constituent part of the church forfeit the prop- erty, if they secede, to those who retain the old status. (>/) And even if the seceders constitute the majority they cannot carry the property with them.(//,) And, if there is a state of anarchy prevailing, the court will regard the order formerly existing as still established, in determining the question as to who retains the real and original organization, and are, there- fore, entitled to the property, (/i) § 153. In the celebrated Chicago case of the Eev. Mr. Che- ney a divided court declared that ecclesiastical tribunals are (/jWatfion V. Avery, 2 Bush, 348. (//) Winebreuiier «. Colder, 43 Pa. (^)McAuley's Appeal, 77 Pa. St. St. 244. 413. INCIPENTAL JURISDICTION AS TO CHURCHES, ETC. 147 nbsolute within their sphere, and whether they conform or not to their own constitution, and whether the result is or is not to exjiel a minister from his ofitice and salary, lawfully or unlawfully, according to the canons of the church, civil courts cannot interfere, (i) This is not the principle running through tlie cases, I think. Wherever rights of property or financial interests are essentially involved the secular courts assuredly have jurisdiction. The court elegantly say, however, in re- gard to the relation between the church and state : "Civil courts have duties and responsibilities devolved upon them, and a well-defined jurisdiction to maintain. The church has more solemn duties, more weighty responsibilities, and an authority granted by the infinite Author of all things. We shall not enter in and 'light up her temple from unhallowed tire.' The ministers selected to sit in judgment on the acts of a brother ought to be impartial and competent, prompted, as they doubtless are, by the teachings of Divine Revelation, and the kindly influences of Christian charity, which 'suf- fereth long and is kind, beareth all things, believeth all things, hopeth all things, endureth all things.' " xind Judge Robert- son, as quoted in this ojiinion, sums the whole up comprehen- sively thus: "Christianity, though an essential element of conservatism, and a great moral power in the state, should only work by love, and inscribe the laws of liberty and light on the heart, and the civil government has no just or lawful power over the conscience, or faith, or form of worship, or church creeds, or discipline, so long as their fruits neither unhinge civil supremacy, demoralize society, or disturb its peace or security." (t) Chase v. Cheney, 58 111. 527. lis EXCLUSIVE AND CONCURRENT JURISDICTIOH. CHAPTEK XIX, EXCLUSIVE AND CONCURRENT JURISDICTION. f 154. In general, l.'i.'). Between law and equity courts. ITii;. General principle. 157. Same rules apply as to concurrent that apply to separate juris- dictions. 158. Application of the rule. 159. Conflict of jurisdiction — priority. 160. Rule of priority — limitations. § 154. It is competent to the legislature to assign the adjudication of a particular class of subjects to a single court exclusively; or, otherwise, to allow several courts to exercise a special jurisdiction or the same branch of a general juris- diction; and this may extend to justices of the peace, and district courts.(a) However, unless a concurrence is directly or indirectly provided for, it does not exist ; as it does not come by implication merely. And so when a statute upon a general subject specifies or creates a tribunal to determine the questions thereon arising, the jurisdiction so conferred is exclusive, in the absence of anything to express the con- trary, (6) in the statute itself, or elsewhere; although, if a statute gives a particular jurisdiction to a court, while another possesses such jurisdiction already, this does not oust the former, but the two are concurrent, when the statute does not expressly take away the pre-existent authority. § 155. The most common, though not the only, concur- rence is between law and equity courts; as, for example, in matters of fraud. And they may co-operate on the same subject, at the same time. But usually when they do this the equity proceedings are subsidiary to the legal, as in a (a)Clepper t>. Stale, 4Tex. 245. (^-jMacklat v. Davenport, 17 la. 387. EXCLUSIVE AND CONCUERENT JURISDICTION. 149 discovery. However, it has been held in Maryland that there may be, at the same time, proceedings in equity to enforce a trust under a deed, and in a law court to set the deed aside, (c) § 156. The leading general principle as to concurrent juris- diction is that whichever court of those having such juris- diction first acquires possession of a cause will retain it throughout.* It has been observed that "great caution should be exercised lest the powers of these co-ordinate courts should be brought into conflict, as it is apparent the evils of such collision would be of serious magnitude; and the safer, if not the only course is that each court shall never suf- fer itself to indulge in a cause, or in regard to a subject-mat- ter, over which another has exercised its jurisdiction, "((i) And not only so, but a court has discretion to refuse juris- diction of a concurrent matter, even in the first instance, especially, I suppose, a court of equity. Jeivett v. Bowuian, 29 N. J. Eq. 176. "This rule would seem to be vital to the harmonious movements of courts w4iose powers may be ex- erted within the same spheres, and over the same subjects and persons. "(fi) And so, where a suit involving conflicting liens and mortgages has been instituted in a court, and all the parties in interest are brought in, and some of the par- ties then institute suit in another court, this will not prevent the former court from determining the whole matter without regard to changes in the title or possession of the property, (c)American Exchange Bank v. a receiver, it is lield in Iowa not to Inloes, 7 Md. 387. be necessary to the jurisdiction of a The principle is a general one that court of law, in an action for dam- concurrent remedies applying to ages against the corporation for the same subject matter, but for whom the receiver is appointed, diU'ereut i)urposes, may exist at law that the consent of the appointing and in equity. State «. Bridge Co. court should be obtained to tlie 2 Del. Ch. 60. institution of the action. Allen o. *And this applies as between law Railroad, 42 la. 683. But the rule and equity courts. Hardeman v. elsewhere is directly the other Battersby, 53 Ga. 36. And it goes way. Gest v. R. R. 30 La. An. 28. through to include the execution of ((/)Winn v. Albert, 2 Md. Chan, the judgment rendered. Hawes v. Dec. 54. Orr, 10 Basil, 432. (e)Brooks v. Delaplaine, 1 Md. Where an equity court apiX)iuts CIuui. Dec. 354. i:)0 EXCLUSIVE AND CONCUKRENT JURISDICTION. ^J^ttrLtluU V. Ihru'uj, 30 La. An. 61S;) since a court which liiis obtained rightful jurisdiction will retain it for all pur- poses within the general scope of the equities to be enforced. obcr V. GaUaher, 93 U. S. 199. And state courts and United States courts are to forbear, in like manner, from interfering with each other. City of Opelika v. Daniels, 59 Ala. 211. And neither can enjoin the process of the other. Chapin v. James, 11 R. I. 87. And the court must make a conclusive determination of the whole case, as the two cannot take it up piecemeal in any event, although the two may have jurisdic- tion in the same class of cases. (/) However, a court of equity may sometimes enjoin proceedings at law, but it has been held that, where the two courts have concurrent jurisdiction, the equitable court will not exert this power unless there are peculiar equitable grounds for its exercise. (//) Jurisdiction in rem may co-exist, and be exercised at the same time, by several courts, where an actual seizure is not necessary, (/t) But then the court whose mesne or final pro- cess has effected the first seizure will have exclusive power of disposal, and of the distribution of the fund arising from it, among the several courts whose adjudication is completed in regard to the matter, (/t) § 157. Where the same court has law and equity jurisdic- tion, the rule is the same, as to the law side and equity side, that prevails as to separate courts, (i) And so, I suppose, even where a code abolishes the distinction between law and chan- cery proceedings, but leaves the principles distinct. But the rule disappears, of course, where the principles are merged, or blended, as in Texas; where an equitable defence may be interposed to a legal action, or vice versa.(j) § 158. The principle applies to a case where a petition has been filed before a board of county commissioners for the incorporation of a town, whereas the city has a right by its charter to extend its boundaries over the territory included in (/ )Hcnry c. Tupper, 2 Wms. (Vt.) (/i)Averi]l v. Steamboat, 2 Cal.309. .579 ; Hickman v. Fainter, 11 W. Va. (/)Mordecai v. Stewart, 37 Ga. 364. '■^^^- . (j)Neill V. Keese, 5 Tex. 23; (i^jBank V. K K. Co. 28 Yt. 477. Smith .;. Doak, 3 Tex. 215. EXCLUSIVE AND CONCURRENT JURISDICTION. 151 the petition. (/i) Also, where one after commencing a suit in one state brings an action on the same subject-matter in another state, then takes testimony in the first and breaks off to take testimony in the latter. Although the domestic tribunal cannot direct the discontinuance of the latter suit, it can 23ut the plaintiff to his election, and, if he will not stipu- late to discontinue the foreign suit, stay its proceedings thei'ein until the end of the foreign suit, with leave thereafter to either party to apply for such further order as may be just.(/) § 159. Where there was a conflict in two courts of the same state, the question arose as to which ought to retain the cause. The matter was j^laced first on the ground of competency, and then on the ground of the rule of priority, and the supreme court — one of the conflicting tribunals — said: "The two courts thus pursuing opposite courses of decision, it is manifestly desirable that the litigation in one should be sus- pended, and the whole controversy'' carried to its conclusion in the other. It is more than desirable. It is indispensable to a reasonable, orderly and decorous administration of jus- tice. How sh:ill this be accomplished? How shall it be decided in which court it shall be continued ? And, when that is decided, how shall the decision be enforced? Assuming that the two courts have jurisdiction to the same extent, and can administer justice with equal facility and benefit, the rule that the court first having cognizance of the subject shall retain it, and draw the litigation wholly to itself, seems to be palpably applical>le. It is perfectly free from odium, is con- sistent with the fullest comity and the most delicate respect for the other tribunal. If there be no reason in the constitu- tion of the courts why one is more comjjetent, under all cir- cumstances existing or likely to arise, to assume the whole of this controversy and conduct it to an issue than the other, priority in acquiring possession of the case may with j)ro- priety be allowed to determine in which it shall proceed. On the subject of jurisdictional power there can surely be no objection to this court succeeding as it does to all the powers (A;)Taylor v. City, 47 Ind. 280. {ijHammond v. Baker, 3 Duer,704. 152 EXCLUSIVE AND CONCURRENT JURISDICTION. of the court of king's bench ; and having, on every subject within the jurisdiction of a state court, the fullest common law jurisdiction, it has also the powers of the state court of chancery in the administration of equity, and territorially its jurisdiction, for every purpose, is co-extensive with the state. The jurisdiction of the common pleas, on the contrary, for many purposes, is limited to the county, and although it may now have jurisdiction over all the parties to this litigation, circumstances may not improbably arise in which the addition of a party residing or tarrying without the county, or any one of numerous causes, may make the more comprehensive juris- diction of this court desirable and necessary to the complete determination of the controversy. "(?«)* § 160. The rule of priority is subject to some necessary limitations, which are thus explained by the supreme court of the United States : "Seizing upon some remarks in the opinion of the court in the case of Freeman v. Howe, not necessary to the decision of that case, to the effect that a court first obtain- ing jurisdiction of a cause has a right to decide every issue arising in the progress of the cause, and that the federal court could not permit the state court to withdraw from the former the decision of such issues, the counsel for plaintiff in error insists that the present case comes within the principle of those remarks. It is scarcely necessary to observe that the rule thus announced is one which has often been held by this and other courts, and which is essential to the correct admin- istration of justice in all countries where there is more than one court having jurisdiction of the same matters. At the same time, it is to be remarked that it is confined in its operation to the parties before the court, or who may, if they wish to do so, come before the court and have a hearing on the issue so to be decided. This limitation was manifestly in the mind of the court in the case referred to, for the learned (/H)Conovor?). JIayor, 25Barl..524. mortgage, suits at law and iu *As to co-ordinate courts the plea equity may be pursued simulta- of a pending suit will justify a neously until the debt is satis- dismissal of the later action. Clay- fied. Ober v. Gallaher, 93 U. S. well V. Sud lerth, 77 N. C. 287. 199. However, in the foreclosure of a I EXCLUSIVE AND CONCURRENT JURISDICTION. 153 judge who delivered the opinion goes on to show that per- sons interested in the possession of the property in the cus- tody of the court may, by petition, make themselves so far parties to the proceedings as to have their interests protected, although the persons representing adverse interests in such case do not possess the qualitication of citizenship necessary to enable them to sue eacli other in the federal courts. The proceeding alluded to here is one unusual in any court, and is only to be resorted to in the federal courts in extraordinary cases, where it is essential to prevent injustice by an abuse of the process of the court, which cannot otherwise be remedied. But it is not true that a court having obtained jurisdiction of a subject-matter of a suit, and of parties before it, thereby excludes all other courts from the right to adjudicate upon other matters having a very close connection with those before the lirst court, and, in some instances, requiring the decision of the same questions exactl3\ In examining into the exclu- sive character of the jurisdiction of such cases we must have regard to the nature of the remedies, the character of the relief sought, and the identity of the parties in the different suits. For example, a part}' having notes secured by a mort- gage on real estate, may, unless restrained by statute, sue in a court of chancery to foreclose his mortgage, and in a court of law to recover a judgment on his notes, and in another court of law, in an action of ejectment, to get possession of the land. Here, in all the suits, the only question at issue may be the existence of tlie debt mentioned in the notes and mort- gage; but, as the relief sought is different, and the mode of proceeding is different, the jurisdiction of neither court is affected by the proceeding in the other. And this is true, notwithstanding the common object of all the suits may be the collection of the debt. The true effect of the rule in these cases is that the court of chancery cannot render a judgment for the debt, nor judgment of ejectment, but can only proceed, in its own mode, to foreclose the equity of redemption, by sale or otherwise. The first court of law cannot foreclose nor give a judgment in ejectment, but can render a judgment for the payment of the debt, and the third court can give the 154 EXCLUSIVE AND CONCURRENT JURISDICTION. rt'lic'f by ejectment, but neither of the others. And the jiuljj;nieut of each court in the matter properly before it is bii)(ling and conchisive on all the other courts. This is the illustration of the rule where the parties are the same in all three of the courts. The limitation of the rule must be much stronger, and must be applicable under many more varying circumstances, when persons not parties to the first proceed- ing are prosecuting their own separate interests in other courts. "(») And so the rule seems chiefly or solely to be confined to cases where the parties are identical, or are privy, and where the object of suit and the points involved are similar in all respects.(o) See my work on "Ees Adjudicata" for further explanation. (»)Buck V. Colbath, 3 Wall. 344. {o)Putnam v. New Albany, 4 Bis. C. C. 369. SUMMARY PROCEEDINGS. 155 CHAPTEE XX. SUMMAKY PROCEEDINGS. $ 161. Former scope of such proceedings. 162. Authority must be strictly pursued. § 161. This topic needs not detain us long, as it is quite restricted, and closely guarded. Formerly, this kind of juris- diction was exercised by giving common law courts a quasi equitable power, in small amounts, as in matters of account under twenty i^ounds sterling; (a) and damages for occupation where the title to land did not come into the controversy. (/^) Landlords' distress warrants are somewhat in the nature of a summary action. However, this is chiefly confined now, where it has any operation at all, to eminent domain jiroceedings, tax collections, and proceedings against court officers ; and ta contempts. § 162. The rule of strict pursuance of authority prevails, as to all courts, herein. The supreme court of Illinois say: "Since the determination of the case of Rex v. Croke, 1 Cowper, 30, the rule has been recognized, and uniformly adhered to, that a special authorit}^ delegated by legislative enactment, to particular persons, or summary j^roceedings, without personal service, to take away a man's property and estate against his consent, must be strictly pursued, and it must so appear on the face of the proceedings. This court has adopted and acted upon this rule, and it is believed every state in the Union has done the same, in sale of lands for taxes, and in aj^propriating private property for public uses. This rule is so uniform and familar that it would be useless to quote authorities in its support. To give the court juris- (rt)Le\vIs V. Kemp, 6 Kicii. (S. C.) (i'>)Liglitner v. llammeter, 3 Brev. 515. (S. C.) 12. 15G SUMMARY PROCEEDINGS. diction, the authority must be strictly pursued, and a failure to do so renders the whole proceeding void. The statute ahiiie confers the authority, and the mode it prescribes can alone be adopted. "(c) And there is no distinction herein between superior courts of general jurisdiction, and inferior courts of limited jurisdiction. (f/) And the rule applies to a proceeding, by motion, against a constable and his sureties for not returning an execution issued by a justice of the peace, (e) or for money collected by the constable. (/) However, if a statute giving summary powers to a court having a common law jurisdiction does not detail the methods of proceeding the principles of the common law must guide. (^) In New York a landlord's proceeding must show venue. (^) (c)City of Chicago ». Railroad, 20 (/)Bam' v. Patterson, 3 Humph. 111. 290. 314. (d)Foster v. Glazener, 27 Ala. 397. (s-jStewartw. Walters, 38 N. J. 274. (e)Canuon v. "Wood, 2 Sneed. (/i)People ex rel. v. De Camp, 12 (Term.) 177. Hun. 378. JUDGES. 157 CHAPTER XXL JUDGES. § 163. Judicial purity. 164. Age — dejur'e and de facto judges 165. Residence. 166. Official and personal bias. 167. Ministerial acts wliich do not disqualify. 168. Mere partisan feeling not a disqualification. 169. Having acted as counsel. 170. Kindred. 171. Pecuniary interest — fiduciary positions — surety. 172. Summary of disqualifications — ^Buford case. 173. Procedure in case of disqualification. 174. Substitution. 175. Liability of judges for official acts. 176. Wilful abuses — forfeiture. § 168. it would be a mere solecism to remark that the efficiency of courts depends on the character of^the judges therein as to intelligence and uprightness. However, it is not needful that a judge should be a very fiend, like the infamous Lord Jeffreys, in order to perpetrate irreparable mischief on community. Even a minor degree of stupidity or arrogance on the bench may be sufficient to subvert all the ends of justice. And it is desirable always that the judicial system should be scrupulously shielded from the influence of partisan rancor; and so it should never be held as a deposi- tory of political rewards, to be bestowed for partisan services. But we must not depart into a disquisition on the merits of the system, but proceed to notice the legal safeguards which have been thrown around it as to the qualifications and dis- qualifications of those who are called to administer justice between the citizens of our common country, and others who may seek redress at their hands under the protection of our laws. 158 JUDGES. § KU. It is legitimate to prescribe a certain age as a siandanl of qiialijfication ; and it does not follow that even every voter should be eligible. It is not uncommon to fix the period of eligibility at thirty years. Yet where this is fixed, and one is appointed judge within age, it will have the effect merely of leaving him liable to be removed by a proper pro- ceeding at any time ; but until this is done he will be regarded as a judge de facto, though not de jure, and his acts will be valid and binding, and his competency cannot be inquired into by parties before him, but must be the subject of a direct inquiry instituted for the purpose of removing him ; (a) and that, too, by the state, because, acting under appointment and commission, he is judge de jure as to all citizens, although subject to be displaced by (pio warranto at the suit of the commonwealth. (//) And hereon the supreme court of Penn- sylvania very tersely remarks: "If a private suitor may not, by the appropriate process, question a judge's commission wlien he has a chance to be heard in defence of his right, much less may such a suitor do it collaterally in an action to which the judge is not a party, and where he cannot be heard by himself or counsel. If this defendant may plead to tlie jurisdiction of the judge, every defendant in Montour county, whether in civil and criminal proceedings, may do the same ; and the judge, instead of trying the rights of parties, will be continually engaged in defending his own; not merely in defending them, but in adjudicating them, contrary to that law, which is too elementary, even for the bill of rights, that forbids a man to judge his own cause. "He is a judge de facto, and, as against all parties but the commonwealth, he is a judge de jure also. If the legislation, or appointment, is to be tested, it must be at the instance of the attorney general, or of some public officer representing the sovereignty of the state.* The notion that the functions ('OKli'ckburn v. Stute, 3 lload, takes a seat in the leffishilurc. (Tenn.) 690. (Communwealtli «. Ilawkc^. ]::.; (i)Clark V. Com. ;]!) Pa. Bt. 138. Mass. 525,) yet the question c.iniK.t ♦And thus, in Mas.sachusetts, al- be tirought forward by a paity w'.io though a judge is disqualified who h.s.s been convicted before hlni nv. 1 JUDGES. 159 of a public officer, or of a corporation existing by authority of law, can be drawn in question, not as to the mode of their exercise but as to their right of existence, except at the pleasure of the sovereign, is a mistake that springs from the too r)revalent misconception that it is the duty of everybody to attend to public affairs. Public officers are provided for public duties, and the remedy for delinquencies is of frequent recurrence, is specific and effectual. This plea to the juris- diction cannot avail the defendant even to raise the consti- tutional question intended. "(Z)) This, however, does not apply to a special judge, and his authority may be questioned by a party, (c) It is only one acting directly under the sovereign authority of the state who can claim the immunity. § 165. In Michigan, one needs not to be a resident of the cir- cuit in order to his eligibility to hold the office of judge therein, but if he is actually residing in the circuit when elected and afterwards removes from it, he vacates his office, (rf) which looks like a very strange anomaly indeed. One would sup- pose it, will be all one way or all the other. § 166. A judge should be free from bias, official or per- sonal. And so, where a probate judge was also a selectman of the town, and therefore a party respondent, by virtue of the latter office, to an application for the appointment of a con- servator over a person in the town, which appointment usually belongs to the probate judge, it was held he was disqualified to act as judge therein. (e) And, formerly, in Massachusetts, a magistrate had no jurisdiction in an action wherein the inhabitants of his town were summoned as trustees for the defendant. (/) But this official or local disqualification has not been carried so far as to j^reclude a justice of the peace, who acted as coroner in the inquest upon a dead man, from acting as examiner in the charge of murder against the man appealed. Coniinonvvealtli v. Tnl)er, (r) White v. Koagan, 25 Ark. (i24. 123 Mass. 253. Nor upon a writ of ((Z)Hoyce«. Goodwin, 22 Midi. 497. hahens corpus. Sheehan's Case, 122 ((^jNettleton's Appeal, 28 Conn. Mass. 445. 270. (i)Clark V. Com. 29 Pa. St. 138. (/jCiark «. Lamb, 2 Allen, 3'J7. ■ H\Q JUDGES, alleged to have caused the death ;(^) nor even to exclude a judge who was formerly on a vigilance committee which had banished the defendant for another and distinct crime from the state ;(/i) nor to forbid a justice of the peace to take cognizance of a cause in which he once acted as arbitrator, although it was suggested he ought not to do so as a matter of good taste ;(i) nor to debar a magistrate who, being also clerk of court, has official duties to perform as clerk on an appeal even from his own decision ;(j) nor to prohibit a jus- tice from hearing the disclosure of a poor debtor, because he had aided the debtor to prepare the disclosure, although this also was reckoned in bad taste. (/b) (See § 172, infra, note.) But holding a post-office, or any United States office, may properly disqualify one from holding the office of judge at all.(0 § 167. The jurisdiction of a magistrate in an action for possession of land is not necessarily ousted by his having executed the lease under which the premises were held, and was the only subscribing witness; nor by his having written the demand for possession, (m) § 168, Neither does a mere partisan feeling necessarily disqualify, notwithstanding it may make matters hot for some or all the parties to a suit, and is, withal, extremely out of place in a judge ; yea, moreover, although political intrigues have led to terrible corruptions, when the judicial seat was less guarded by legal restrictions than now. If there should be such a thing as an elective judiciary in our republic, at least the terms of office should be long in their tenure. But the supreme court of California say: "The exhibition by a judge of partisan feeling, or the unnecessary expression of an opinion upon the justice or merits of a controversy, though exceedingly indecorous, improper and reprehensible, as calculated to throw suspicion upon the judgments of the («7)Forcle v. Commonwealth, 16 (7) Commonwealth 0, Keenan, 97 Gratt. r,48. Mass. 591. (/t)People V. Mahoney, 18 Cal. 185. (A)Lovering v. Lamson, 50Me.335. (t)Batchelder «. Norse, 35 Vt. (?)Hoglan«. Carpenter, 4 Bush. 89. 5^' (m)Cook V. Bertli, 102 Mass. 373. JUDGES. IGl court, and bring the administration of justice into contempt, are not, under our statute, sufficient to authorize a change of venue on the ground that the judge is disqualified from sitting. The law establishes a different rule for determining the quali- fication of judges from that applied to jurors. The reason of this distinction is obvious. The province of the jury is to determine from the evidence the issues of fact presented by the parties, and their decision is final in all cases, where there is a conflict of testimony. Therefore, the expression of an unqualified opinion on the merits of the controversy, which evinces such a state of mind as renders him less capable to weigh the evidence with entire impartiality, is sufficient to exclude a juror. The province of a judge is to decide such questions of law as may arise in the progress of a trial. His decisions upon these points are not final, and if erroneous the party has his remedy by bill of exceptions and appeal. If forming or expressing an opinion upon the merits of the con- troversy was sufficient to disqualify a judge, it would be nec- essary that the venue of a cause should be changed after a mistrial, or the granting of a new trial ; for after hearing the evidence and argument of counsel upon a mistrial the judge would, of course, have formed an opinion upon the merits of the controversy, and the fact of granting a new trial is often equivalent to the expression of such opinion, "(/i) Yet, the general rule is that a judge should not express an opinion so as to bias the jury. § 169. A judge cannot properly act as counsel in his own court, nor decide a cause in which he has once been counsel, although this is not to be pressed so far as to hold that where a county judge has been of counsel for some parties interested in an administrator's sale of real estate, he cannot grant a license for the sale;(o) nor to hold that his acts are absolutely void instead of voidable ; (/?) or that the objection cannot be waived by the parties, either expressly or by proceeding in the cause. (;?) (7?,)McCauley v. Weller, 12 Cal. tend to a subscMjnent independent 523. suit])(itwvenlhi'.'a!iie parties. Stew- (o)Morganfl. Hammett, 23 Wis.40. art v. Mix, SlieritT, 30 La. An. 1035. Nor doi's the disquulilication ex- (^jStearnaw. Wright, 51 N. II. 600. V.l— 11 [(',0 JUDGES. Thus, a ]m)l)rtte judge has been held not disqualified by hav- ing jtivviously acted as counsel in regard to the settlement of an estate, unless objection is made on that ground. (5) And so, tiie parties consenting, a judge who has been of counsel may render a valid decree in chancery. (r) However, without such consent, expressed or implied, a judge cannot properly exercise jurisdiction in any cause where he has been of counsel. And so carefully is this mat- ter guarded all around in order to keep distinct the offices Of attorney and judge, that, on the other hand, in Michigan, it is held that a judge who has resigned, intending to act no more officially, is not allowed to officiate in a criminal case, as assistant prosecutor, before the time fixed for his resigna- tion to take effect. And the court said that this was not a matter of indifference, but opposed to public policy, and, therefore, subject to exception. (s) ^j 170, A judge should not be subject to the bias of kindred, which, indeed, may work either way, to the advantage or dis- advantage of the related person. So, where a defendant objected to the jurisdiction on the ground that he was a brother of the judge, and it was replied that it was not for him to complain of this, the supreme court remarked that "the delicacy of the position would lead many a conscientious judge to lean against his relative; for fear of leaning in his favor, in striving to stand perfectly erect, to bend a little back- ward. "(^) That the defendant married the sister-in-law of the judge's wife is held too remote to disqualify, {Fort v. West, 53 Ga. 584,) although the disqualifying relationship may be either by natural kindred, or by marriage; and, within the prohibited degrees, the disqualification is absolute. The proceedings are void even in the absence of objection ;(«) and it is the business of the judge himself to notice the facts, (7)Platt V. Railroad, 577. judge's wife is a party is sufficient (/•j.Jcwett V. Miller, 12 la. 86. to recuse him on the ground of (.s)IJashford«. People, 24 Mich. 245. personal interest, whether slie is (OKelleyv. Hacket, 10 Ind. 300. separate from him in property or (v)Schoonmakerfj. Clearwater, 41 not. Hyam's Succession, 30 la. Barb. 202, and cases cited. An. 460. In Louisiana tlie fact that the JUDGES. 163 and proceed no further in the cause than to regulate the calendar, or arrange the order of husiness, assigning the cause its place, (r) And even an order dismissing the action is void, because he is incapacitated to make any order. (i?) Eelationship is, perhaps, in most of the states, estimated under the civil law, and the degree of consanguinity is the third therein, at which the disqualification of a judge is fixed, (»•) including, therefore, the kindred of first cousins, but nothing more remote than that of second cousins. (.r) The matter seems to have been carried to an extreme, in Vermont, as to marriage relationship, since it has been held that one cannot even sit as auditor on a trial on a book account whose wife is first cousin to the wife of one of the parties ; and it is intimated that the objection might be taken at a late stage in the progress of the cause, (//) In Georgia, where one of the parties was an executor, and married the sister of the wife of one of the judges, it was held the fact worked no disqualification. (^) A judge of i^robate is not disqualified from acting, in Mas- sachusetts, in regard to a will, and the estate under it, simply because his father-in-law is a creditor of the estate, if the father-in-law is not a party to the proceedings; otherwise, he is incompirtent; as, also, in the case of a brother-in-law. (/<) § 171. More especially, where a judge is pecuniarily inter- ested, he is disqualified; since no man can be judge in his own cause.* But it has been held that, in general, it must («)People V. Guerra, 24 C'al. 76. *In Lonisi.ina, a parish judne (tfj)Ibid; De La Guerra t). Benton, who is interest t'd in a cu use before 23 Cal. 593. him should refer it to the district (^)Brady v. Kicliardson, 18 Ind. 1. judge ; but if he is not interested, (?/)Clapp «. Foster, 34 Vt. 583. nor of kindred by blood or marriage, (j)Deupree «. Deupree, 45 Ga. but otherwise disqualified, he may 414. ■ appoint a lawyer to act as temjw- («)Aldrich, appellant, 110 Mass. rary judge in the matter. State «. 19(1. McCoy, 29 La. An. 593; State v. But where the father of a probate Williams, Id. 785. This is a con- judge is a creditor of an estate, and stitutional power; but tiie lawyer joins the administrator in a jietition so appointed is not obliged to .serve ; to sell lands, tlie judge should not nor is he obliged to act even after pass on tlie application. Lacroix, he has accei)ted and passed upon Succession, 30 La. An. 924. some preliminaiy matters in the 1(54 JUDGES. bo a direct and immediate interest in the cause or proceed- ing. (/>) And so, where a probate judge receipted for confed- erate treasury notes as full payment of a decree rendered in liis court, and afterwards the guardian who had paid the notes made a motion to quash a fi. fa. issued thereon, and to enter satisfaction on account of the payment of the con- federate notes, his jurisdiction was sustained, on appeal. (/y) The remote and minute corporate interest of a police judge in fines collected is no disqualification for taking jurisdiction of the offences from which the fines arise. (c) And the fact that a judge is joint owner with an estate in a tract of land, does not deprive him of jurisdiction of the estate in matters not pertaining to that tract of land.('rf) And 60, if the mayor is the owner of a lot on a street to be wid- ened, this does not disqualify him to preside in the mayor's court before which the proceedings are had.(e) And, in general terms, it is declared that the incapacity of interest does not extend to merely formal orders, and proba- bly not to a case in which no other judge could act.(.f) But holding the relation of administrator to an estate involves, necessarily, an obligation to act for the interest of that estate, and so a judge sustaining such relation cannot act in matters where the estate is interested. (f/) And so of any other fiduciary relation. () However, in Missouri, although a judge may assign to a (.vjSniith «. Frisbie, 7 Clarke (la.) the parish judge legally recused, ^^'^- the parish judge of an adjoining (<)Clayton v. AVallace, 41 Ga. 270. parish may act in the matter. Hy- (?/;Smithfl.Blakeman,8Bush.477. am's Succession, ,30 La. An. 460. (B)Ginistead v. Buckley, 32 Miss. A district attorney, who is a prac- ■''*^- ticing lawyer, may serve as a sub- («;)Glavecko v. Tijirina, 24 Tex. stitute, in Louisiana. State ex rel. ^^•^- Chargois, 30 La. An. 1102. (.r)State «. Thomas, 56 Me. 492. (//)AIalady «. IVIcEnery, 30Tud. 276. In Louisiana, where an injunction (r) Application of .Judges, 04 Pa. is api)lied for which falls within St. ?A. the juri.sdiclionof tliedistrict court, (.^Bear v. Cohen, Go X. C. 51L and tlic district judge is absent and (AjIIawes w. Mauney, 66 N. C. 221. JUDGES. 169 neighboring judge the whole business of a term, he cannot call him in to try a particular cause, in order to obviate the necessity of a change of venue, or for any other reason, and if he does so the proceedings are all void.(c) Judicial power cannot be delegated ; as where an absent judge telegraphed the clerk to discharge the jury in a crimi- nal case, and the clerk did so, it was held to be error of so fatal a character that the prisoner was thereon entitled to his discharge, (rf) And the power of substitution must be strictl}^ pursued; as where a statute authorizes a justice of the peace to take jurisdiction in a case where, on the part of the municipal judge, there is "absence, sickness, or other inability," the fact that the judge declines to act does not confer jurisdiction on the justice. (f) And so where a clerk of the district court is authorized to discharge the duties of the county judge, when the county judge and prosecuting attorney are both unable to act, the inability and the cause thereof must appear of rec- ord, and if this is not so an appellate court v/ill not entertain an appeal from the judgment rendered by the clerk. (/) § 175. Although judges act under grave resj)onsibilities, yet they are not held liable in pecuniary damages for mere mistake, void of malice or gross negligence. (r/) And this rule applies as well to inferior as to superior courts, (//) except to the former in a less degree, since it is held that, as to judges of courts of record of superior or general jurisdiction, they (?)Gale, Adin"r, «. Michie, 47 Mo. cannot act as district judge wlio 32G. has not practiced law in tliat state (d)State V. Jcflerson, G6 N. C. for two years next preceding hig 309. election ; or, if he has practiced (e)Klaise v. State, 27 Wis. 402. without tlic formal admission to the (/jBiu-lington University «. Ex- bar prescribed by the constitution ; ecutors, 12 la. 442. and one is not held to have prac- (,9)Cope V. Ramsey, 2 Heisk. ticed law, in the constitutional (Tenn.) l'.)7. Or corruption : Gault sense, merely because he has acted «. Wallis, !j3 Ca. 675. as district attorney. State ex rel. v. There is a rule in Louisiana — Marks, 30 La. Au. 97. unique but judicious — intended, ev- (A)Londeoan «. Hammer, 30 la. idently, to guard against mistakes 509. from inefficiency, viz.: that one 170 JUDGES. iuv not ]i:il)lo in civil actions for their judicial acts, even if (hose acts are in excess of their jurisdiction, and are alleged to have been corrupt or malicious. There is, however, a dis- tinction between such acts and such as are performed in the entire absence of any jurisdiction over the subject-matter, for these latter are trespasses ab initio. (i) An able opinion of the supreme court of the United States, delivered by Justice Field, holds this language in regard to the subject of judicial liability: "It is a general principle, of the highest importance to the proper administration of justice, that a judicial officer in exercising the authority vested in him shall be free to act upon his own convictions, without appre- hension of personal consequences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judge would be inconsistent with the possession of this freedom, and would destroy that independence without wdiich no judiciary can be either respectable or useful. As observed by a distinguished English judge, it would establish the weakness of judicial authority in a degrading responsibil- ity. The principle, therefore, which exempts judges of courts of superior or general authority from liability in a civil action for acts done by them in the exercise of their judicial func- tions, obtains in all countries where there is any well-ordered system of jurisprudence. It has been the settled doctrine of the English courts for many centuries, and has never been denied, that we are aware of, in the courts of this country. It has, as Chancellor Kent observes, a deep root in the common law. Nor can this exemption of the judges from civil liability be atfected liy the motives with which their judicial acts are performed. The purity of their motives cannot in this way be the subject of judicial inquiry. This was adjudged in the case of Floyd and Barker, reported by Coke, in 1608, where it was laid down that the judges of the realm could not be drawn in question for any supposed corruption, impeaching the verity of their records, except before the king himself, and it was observed that if they were required to answer otherwise, it (^■) Bradley v. Fisher, 13 Wall. 347. JUDGES. 171 would tend to the scandal and subversion of all justice, and those who are the most sincere would not be free from con- tinual calumniations. "The truth of this latter observation is manifest to all persons having much experience with judicial proceedings in the superior courts. Controversies involving not merely great pecuniary interests but the liberty and character of the par- ties, and consequently exciting the. deepest feelings, are being -constantly determined in those courts, in which there is great conflict in the evidence, and great doubt as to the law which should govern their decision. It is this class of cases which imposes upon the judge the severest labor, and often creates in his mind a painful sense of responsibility. Yet it is in pre- cisely this class of cases that the losing party feels most keenly the decision against him, and most readily ae'cepts anj^thing but the soundness of the decision in explanation of the action of the judge. Just in proportion to the strength of his convictions of the correctness of his own view of the case is he apt to complain of the judgment against him, and from complaints of the judgment to pass to the ascription of improper motives to the judge. When the controversy involves questions affecting large amounts of property, or relates to a matter of general public concern, or touches the interests of numerous parties, the disappointment occasioned by an adverse decision often finds vent in imputations of this char- acter; and, from the imperfections of human nature, this is- hardly a subject of wonder. If civil actions could be main- tained in such cases against the judge because the losing party should see fit to allege in his complaint that the acts of the judge were done with partiality, or maliciously, or cor- ruptly, the protection essential to judicial independence would be entirely swept awa}'. Few persons sufficiently irritated to institute an action against a judge for his judicial acts would hesitate to ascribe any character to the acts which would be essential to the maintenance of the action. ***** A distinction must be here observed between excess of juris- diction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over 1 72 JUDGES. tlu> subject-matter, any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is l)ermissible."(,y) v^ 17(). Nevertheless, for wilful abuses of authority, or for malfeasance, misfeasance, or non-feasance in office, a judge mav be removed by imiieachment,(A;) or otherwise, as by address of the legislature; but never by mere legislation. (Z) Or if, while one is judge he is convicted of felony, this not only vacates his office, but no pardon can restore him.(»i) And, in Alabama, it has been held that one who occupied the office of judge of the circuit court vacated the office and forfeited all his rights therein by entering into the military service of the rebellion, and there was no need of any judicial proceeding to determine the fact of forfeiture and vacancy. And if afterwards he was elected judge under the confed- eracy he did not thereby become even judge de facto; and when the legitimate government resumed its sway, it was under no obligation, legal or moral, to pay him for his labors as such rebel judge. (/«) (j)Bradley»;. Fisher, 13 Wall. 347, An. 491; even by abolishing the passiwt; Davis and Clifford, J J., dis- office he holds. State ex rel. v. senting. Jiimel, 30 La. An. 861 (A;)Commonwealth v. Gamble, 62 (wjState v. Carson, 27 Ark. 469. Pa. 8t. 343. (7i)Chisholm «, Coleman, 43 Ala. (i) State ex rel. v. Towne, 21 La. 216. CONTROL OF ATTORNEYS. 173 CHAPTEE XXn. CONTROL OF ATTORNEYS. f 177. Removal from the bar. § 177. It is a general princij)le that the jurisdiction of a court includes the power of enforcing rules of order, and of governing its officers, including attorneys. And, moreover, a court may compel obedience upon the part of attorneys by various modes, extending to their exclusion from the bar, if necessary. The supreme court of the United States say in regard to this matter : "This power of removal from the bar is possessed by all courts which have authority to admit attorneys to practice. It is a power which should only be exercised for the most weighty reasons, such as would render the continuance of the attorney in practice incompatible with a proper respect of the court for itself, or a proper regard for the integrity of the profession. And except where matters occurring in open court, in presence of the judges, constitute the grounds of its action, the j)ower of the court should never be exercised with- out notice to the offending party of the grounds of complaint against him, and affording him amjDle opportunity of explana- tion and defence. This is a rule of natural justice, and is as applicable to cases where a proceeding is taken to reach the right of an attorney to practice his profession, as it is when the proceeding is taken to reach his real or personal property. And even where the matters constituting the grounds of com- plaint have occurred in open court, under the personal obser- vation of the judges, the attorney should ordinarily be heard before the order of removal is made, for those matters may not be inconsistent with the absence of improper motives on 171: CONTROL OF ATTOKXEYS. his i);u-t, or may be susceptible of such explanation as would mitigate their oft'ensive character, or he may be ready to make ill! proper apology and reparation. Admission as an attorney- is not obtained without years of labor and study. The office which the party thus acquires is one of value, and often becomes the source of great honor and emolument to its possessor. To most persons who enter the j)rofession it is the means of sup- port to themselves and their families. To deprive one of an olhee of this character would often be to decree poverty to him- self and destitution to his family. A removal from the bar, therefore, should never be decreed where any punishment less severe, such as reprimand, temporary suspension or fine, would accomplish the end desu'ed. "But, on the other hand, the obligation which attorneys impliedly assume, if they do not by express declaration take it upon themselves when they are admitted to the bar, is not merely to be obedient to the constitution and laws, but to maintain, at all times, the respect due to courts of justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in open t'ourt, l)ut it includes abstaining out of court from all insult- ing language and offensive conduct towards the judges per- sonally for their judicial acts. 'In matters collateral to official duty,' said Chief Justice Gibson, in the case of Austin . It is conceded by all that the right to protect itself a-ainst contempt, in some way, belongs to every court. But there is a variance in the authorities as to the manner and degree, some holding it to be inherent, and not subject to review, even when exercised by lower courts in the absence of statutory authority, except in the way of subjecting a magis- trate to indictment or impeachment, if he acts maliciously or oppressively; (a) others holding that none but courts of record can punish summarily for contempt, the inferior courts hav- ing only a right to procure an indictment against the of- fender.(6) The reason of the case seems to be decidedly with the former, when we consider the necessity of a prompt, decisive, immediate suppression of an existing obstruction to justice in pending proceedings. And the remark of the New Jersey court seems painfully inadequate, that "to compel sureties, for the peace or bail, to answer an indictment, or to commit in default of either, besides the other remedies stated, are powers sufficient to protect these inferior jurisdictions from obstruction ; and he who disturbs them, although they may be inferior in a legal sense, should understand, by the penalties of a conviction on an indictment, that the}^ per- form a very important and necessary part in the administra- tion of the laws, both general and local, and will receive the full protection that punishment for misdemeanor can secure." It is certainly evident that remote and uncertain punishment has infinitely less restraining power than immediate and inevitable consequences. Yet there is a well-founded distinction between superior and inferior courts, in this, that the latter cannot punish, as for a criminal contempt, except for interruptions to business during (a)Clark v. People, Breese (111.) gan, 33 N. J. L.; Bradley v. Fisher, 340. 13 Wall. 354, 350. {b)ln the matter of Peter Kerri- CONTEMPTS. 179 judicial proceedings, and cannot enforce civil remedies by proceedings as for contempt, (c)* The supreme court of Mississippi well remarks, on the power to fine and imprison for contempt, that "from the earliest history of jurisprudence it has been regarded as a necessary incident and attribute of a court, without which it could no more exist than without a judge. It is a power in- herent in all courts of record, and co-existing with them by the wise provisions of the common law, A court without the power effectually to protect itself against the assaults of the lawless, or to enforce its orders, judgments or decrees against the recusant parties before it, would be a disgrace to the leg- islation and a stigma upon the age which invented it. In (c)In the matter of Watson, 3 Lans. {N. Y.) 414. *A court which has no power to disbar an attorney may yet report to the licensing court disorderly conduct on the part of an attorney-, whose duty it is to look into the report, Brewster's Case, 12 Hun. 110. In New York it has lately been held that the power of a justice of the peace to punish for contempt is wholly statutory. Rutherford v. Holmes, 66 N. Y. 368; Andrews and Miller, JJ. , dissenting. And also as to a surrogate's court. Wat- son V. Nelson, 69 N. Y. 536. In Connecticut it is held that the statute only regulates the power, and does not confer it — the power being inherent in all courts. Mid- dlebrook v. State, 43 Conn. 257. So that a decision thereon, where the proceeding is according to the common law practice, is not re- viewable by the supreme court, because at common law the power of review did not exist, and this can only be conferred by statute. Wilson V. Territory, 1 Wy. 114. Tyler «. Hamasley, 44 Conn. 393, In Alabama it is held not only absolute, but the party does not even need to be allowed an oppor- tunity of defense, the proceeding not being regarded as a criminal trial. E.V parte Hamilton, ,51 Ala. 66. But, in Texas, a party is enti- tled to a rule nisi when disobedi- ence to process is charged against him, which doubtless is, in eHect, the general rule in such cases. Ex parte Kilgore, 3 Tex. Ct. of Ap. 247. And especially is an officer entitled to a rule when proceeded against for not executing process. Wheeler v. Harrison, 57 Ga. 24; Wheelers. Thomas, Id. 161. Where a contempt is committed in the presence of the court, the court has immediate jurisdiction of the offender, and, although he leaves the court room and absconds, lie may be sentenced, in his absence, without the issuing of process for his arrest. Middlebrook v. State, 43 Conn. 257. See, also, People ex rel. V. Nevins, 1 Hill, 1.54. But, if one is discharged on the ground that the punishment imposed was in part unknown to the law, he cannot be re-sentenced for the same contempt. Snyder v. Van Ingeu, 9 Hun. 569. IgQ CONTEMPTS. ihis country all courts derive their authority from the peo- l)k\ aiul hold it in trust for their security and benefit. In this state all judges are elected by the people, and hold their authority in a double sense directly from them; the power they exercise is but the authority of the people themselves, exercised through courts as their agents. It is the authority and laws emanating from the people which the judges sit to exercise and enforce. Contempts against these courts, in the administration of their laws, are insults offered to the author- ity of the people themselves, and not to the humble agents of the law whom they employ in the conduct of their gov- ernment. The power to compel the lawless offender against decency and propriety to respect the laws of his country and submit to their authority (a duty to which the good citizen yields hearty obedience without compulsion) must exist, or courts and laws operate at last as a restraint upon the upright, who need no restraint, and a license to the otfenders whom they are made to subdue. "(cZ) It seems reasonable that each court should be its own judge as to the contempt, and perhaps, usually, its decision is not reviewable. (e) But a statute may, of course, make it subject (d)Watson «. Williiims, 36 Miss. ducting proceedings in a cause, it 341. is the imperative duty of a justice Wherever a party relies on the of the peace to repress all disorderly disqualification, by interest, of a behavior of p-irties, counsel, or by- magistrate, to nullify contempt pro- standers. Onderdonk v. Kanlett, ceedings, it is his place to establish 3 Hill, 329. Although the mere Buch disqualification, and not to neglect to comply witli an order, require the magistrate to aver in such as an order to produce a paper the mittimus that he is not inter- in evidence, will not justify him in ested in the cause. Call v. Pilce, punishing th^ neglect as a con- 68 Me. 219. tempt. People ex rel. v. Benjamin, In New York it has been held 9 How. Pr. 419. As to the power that a justice of the peace may of a public officer, as a comrais- proceed, by warrant, to cause the sioner, or of a committee, to commit arrest of an offender for contempt- for a contempt, it must not be im- uous words spoken to him by the plied, but must be clearly conferred party, after judgment rendered by law. Noyes v. B^-xbee, 45 Conn, against the party, and while the 382. (See p. 179, note.) justice is not actually holding court. (<')Statc v. Thurmond, 37 Tex. Kichmondv. Dayton, 10 Johns. 395. 341; Clark v. People, Breese (111.) And, more especially, while con- 340. CONTEMPTS. 181 to appeal. (/) In the United States courts contempts are exclusively cognizable by the courts where they arise, and cannot be appealed, (^f) In Kentucky, while the question of contempt or no contempt is not reviewable, the sentence in- flicted is so; as, for example, striking an attorney from the rolls. (/<) And in Maine the question of jurisdiction may be examined ;(t) as, also, in California. (j) In Iowa, while not coming under the power of criminal aj^peals, yet matters of contempt are reviewable on certiorari. As to such appeals we will treat fully in the second volume of the present work.* § 180. As to the nature of proceedings in contempt it is held that these are of a quasi criminal character, and conse- quently the state is the real prosecutor, and where the pro- ceeding is against a party in a civil cause for misconduct or disobedience therein it should not be entitled as of such action; (A,) and still less should a fine imposed be allowed to the ojjposite party. (I) Imprisonment, too, must be for a certain and definite time, or must expire on the performance of a condition, (w) So that the remarks of Chancellor Pirtle are worthy of close attention : "Is it necessary that the courts of (/)Whittera v. State, 36 Ind. 197. not properly review a contempt ((7)New Orleans t\ Steamship Co. committed in another court. Shut- 20 Wall. 387. luck ». State, 51 Miss. 50; Phillips (/i)Turner ». Commonwealth, 2 v. Welch, 12 Nev. 159. Yet, even Met. 619. if a court commissioner lias author- (i) Railroad v. Railroad, 49 Me. ity to punish for contempt, the 401. ' court may do so, if he does not (.y)Batchelder «. Moore, 42 Cal. exercise such authority. Niellman- 414. kamp v. Ulhnan, 47 Wis. 168. And . *A. recent case in Missouri has of course there may he an appeal decided that where a person refused in some cases, in which, however, to serve as a juror, on the ground the point of inquiry relates to the that he was exempt by statute, and jurisdiction of the inferior court, was thereupon committed for con- and the regularity of the exercise tempt, the legality of the committal thereof on the face of the proceed- could not be incpiired of by habeas ings. Phillii^s «. W^elch, supra. cf/7H<« proceedings. Exparte Good- (/,:)IIaight ». Lucia, 36 Wis. 360. win, 67 Mo. 637. And so in Mich- (/)ln the matter of Rhodes, 65 N. igan, where one is committed for C. 519, and ]\Iorris v. While. .cad, refusing to pay alimony. Bissell's Id. 637. Case, 40 Mich. 63. And this rests (»i.)W.hittem «. State, 3(; Ind. 216; on the ground that one court can- Leach's Case, 51 Vt. 630. ;lg2 CONTEMPTS. this country should have power to commit until further order of the court? I cannot find it. I can see no call for it. I can see danger in it, and the law should not make danger where there is no necessity. A. freeman should never, by the laws of freemen, be placed in such dreary uncertainty of imprisonment as that when he inquires of 'the law of the land' it cannot tell him when it shall end. No absolute power lives in this country. It cannot exist in a republic. Suppose the court should adjourn without having made any further order, the consideration of the case is cut off at once, and entirely, until the next term. So he must be left without any authority of the judiciary even to mediate his case. And a person committed for contempt cannot be bailed." Quoted 3(5 Ind. 216. In the United States courts it is treated as a criminal pro- ceeding, in the name of the United States; and in matters of mere disobedience the party is heard in his own behalf, («) while in direct contempt, by misbehavior in the face of the court, sentence is given on view only.(o) Eine and imprisonment are the usual modes of punish- ment. But the court is not always confined to these, but can refuse to allow one in contempt any aggressive proceed- ings against his adversary in a cause pending, although it cannot stay him in his proceedings, by motion or appeal, where appeal is allowed, when his object is to rid himself of the alleged contempt, or show that the order he disobeyed was in itself erroneous. (jj) § 181. A witness is not only liable in contempt for inso- lence and contumacy in open court, but also before the grand jury in refusing to answer proper questions, and threatening some of the grand jurors. And he may not only be fined, but also required to give security for his good behavior for a jea.Y.{q) And, universally, wilful disobedience to a subpoena is a contempt in superior courts. A justice of the peace, (n)F.inshawe v. Tracy, 4 Bis. (//)Brinklev v. Brinklev, 47 X. Y. 49K. 4„ ()llill w. Craiulall, .)2 111. 73. is vested in a receiver on the dis- CONTEMPTS. 180 as to include acts performed before the existence of the order which is claimed to have been thereby violated; as, for in- stance, for publishing proceedings before there was an order or rule prohibiting such publication ;(j9) or where there is an injunction forbidding the removal of certain bonds beyond the jurisdiction of the court, which bonds had already been thus removed. ((/) § 193. It is a rule that unless there is a positive order of court to be obeyed without delay, or unless the acts are in the presence of the court, a citation to show cause should first issue, (r) which, generally, may be served on the attorney of the party, unless in criminal contempts, in which personal notice is necessary. (s) The defendant may then appear and clear himself of the contempt by answer, if at law, or by proof, if in chancery.(^) § 194. Where one makes answer that he had no intention to obstruct the execution of a decree of the court, but, as a practicing attorney, he had acted therein in good faith and without disrespect to the court, it will clear him of the con- tempt, (?/) the actual intention of the respondent being ma- terial. (r) But it is no defence that an appeal has been taken from the order disobeyed, (w) Nor where there has been a commitment for contempt by a justice of the peace can the order or judgment of the justice usually be reviewed as to its validity. (.r) Nor is it a defence that the order was irregularly served, (//) or an injunction of which the party has actual knowledge. (^) Nor will a continuance after refusal, as, for example, in disobeying a decree to convey land, always clear the contempt. ((/) But in all cases in courts of law where there is a disavowal of disrespect and no order is violated, (p)Dunliamo. State, G Clarke, 2.j3. (w)People ex rel. v. Bryan, 53 N. (5) Witter V. Lyon, 34 Wis. 57G. Y. 410. {r)Ex parte Ireland, 38 Tex. 356. («)Robb v. McDonald, 29 la. 330 ; (s)Pitt V. Davison, 37 N. Y. 235. Williams, J., dissenting. (/)T^uck«. Buck* 60I1I. 106; State (//)Billings v. Carver, 54 Barb. V. I'::irl,41 Ind. 464. 41. (w) Wells V. Comnionwcaltli, 21 (.c)Mcad, Trustee, »). Norris, 21 Wis. Gratt. 506. 315. (r)In the matter of Moore, 63 S. (rr)Snovvman v. Harford. 57 Me. C. 40S. 39 S. 190 CONTEMPTS. tbere being a negative rather than positive and remote rather than direct infraction, a disavowal will clear the contempt. It is a defence that one was hindered from obeying the order of court by the act of the adverse party, even if that act was lawful. (fc) § 195. A sentence for contempt may be remitted by the pardon of the executive power, but not by the court itself, (c) § 19(1. A party while in contempt also may defend but not prosecute litigation. (ri) And so in New York it was held projier to strike out a plaintiff's comj)laint when he refused to produce a paper in his possession. (e) (6)McC'art;in i). Van Syckel, 10 ((Z)Mead «. Norris, supra. But Bosw. (i!)4. See, to the same effect, see Hazard «. Durant, 11 R. I. 209. Hull V. Harris, 45 Conn. 546. (6)Shelp«. Morrison, 13 Hun. 110. (c)In reMuIlee, 7 Blatch. C. 0. 24. NEWSPAPER CONTEMPTS. 191 CHAPTEE XXIV. NEWSPAPER CONTEMPTS. ? 197. Indirect contempts — general rule and examples. § 197. We treated of direct contempts in the last chapter, and now the question of indirect or constructive contempts comes up for consideration, these not being in the cause, nor in- volving violence in the presence of the court. It is not wonder- ful that such cases as involve the right of newspaper publica- tions should awaken intense public interest, since herein there is immediate collision between two of our most cherished and most essential institutions — courts of justice and the press. The general rule is held to be that where a j)ublication, being read by jurors and attendants on the court, would have a tendency to interfere with the proper and unbiased admin- istration of the law in pending cases, it may be adjudged a contempt, and accordingly punished. A libel not directly calculated in some way to hinder, obstruct or delay the ad- ministration of justice is not to be summarily punished as a contempt; so that a publication reflecting on a grand jury, or on any member of it, relating only to a past action thereof, and not tending to interfere with future duties, cannot be treated as a contempt of court. Storey v. People, 79 111. -15. And so, where a newspaper publication misrepresented the action of a chancellor, in modifying a decree of injunction, and yet there was no apparent obstruction to justice arising from it, it was held there was no contempt, and especially as the defendant disclaimed all intentional disrespect to the court. Morrison v. Moat, 4 Edw. 25. The contemj)t must be directed against the court, or some jjart thereof, as the judge, or the jury, and not against the parties merely. And so, where a governor brought suit for libel against the chair- 102 NEWSPAPER CONTEMPTS. luiin of a public meeting, and, pending the suit, another pub- lic meeting was held, which passed resolutions on the subject of the suit, and bitterly denounced it, the court would not punish the critics although the language employed in the crit- icism was very severe, viz. : "Eesolved that we consider the prosecution commenced by Governor Lewis against Thomas Farmer, as chairman of a public meeting of free citizens, to be an unwarrantable attempt to suppress and destroy one of our dearest and most valuable privileges — that of assembling together openly and publicly; of discussing freely the con- duct of public men and public measures ; and of expressing our resolutions and opinions to the world; and that, there- fore, such prosecution evinces an intolerant spirit, unbecom- ing the chief magistrate of a free state, disgraceful in a free government, and insulting to the feelings of every citizen who was present at that meeting." Which attack was also dupli- cated in the following breezy resolution : "In prosecuting the chairman of a general meeting of citizens, for resolutions publicly passed as the sense and opinion of that meeting, thereby exhibiting an instance of and disposition towards tyranny, novel and unprecedented, dangerous to civil liberty, repugnant to the spirit and genius of our free constitution, and utterly subversive of the principles of an elective govern- ment." People ex rel. v. Few et al. 2 Johns, 290. But criticism, on the other hand, is not to be suppressed, even as to courts and their proceedings, and the New Hampshire court say, per Perley, C. J. : "The publishers of newspapers have the right, but no higher right than others, to bring to public notice the conduct of courts and parties, after the decision has been made ; and, provided the publications are true and fair in spirit, there is no law, and I am sure there is no disposition, to restrain or punish the freest expression of the disapproba- tion that any person may entertain of what is done in or by the courts, "(fl) But this rule, in Iowa, is very closely restricted. And in (a)Sturoc's Case, 48 N. H. 432. and thus tend to obstruct the ad- Herein it was held tliat strictures on ministration of justice, must be a court, Avhich would reach jurors, held as a contempt. NEWSPAPER CONTEMPTS. 193 a case where there were no less than three arrests for con- tempt, for successive publications, the fines assessed were, on appeal, judged erroneous. The first article (Burlington Hawkeye, 1857) was the following: "In the malicious pros- ecution pending against -J. F. Abrahams, under the rulings of the court, he was convicted of leasing his house for improper purposes, and fined by Judge Claggett one hundred dollars. Upon his appearing and ottering to appeal to the supreme court. Judge Claggett fixed the bail at Jifty thousand dollars. What do our readers think of the fairness and impartiality of a judge who is guilty of this extortionary demand, in direct violation of the eighth amendment to the constitution — 'excessive bail shall not be required?' In the light of this oppressive demand, it is easy to see w^iat an engine of injus- tice and outrage our courts of justice are capable of being made in the hands of a vindictive and implacable man, such as we hope Judge Claggett will not prove himself ; or corrupt and infamous men, such as Leeompte and Cato, of Kansas. We do not believe our records have ever before been dis- graced by, or our archives contained, such a bail-bond aa that demanded by Claggett, and given yesterday by J. F. Abrahams. Fifty thousand dollars bail in a case wherein the sentence of the court was a fine of one hundred dollars ! Has the case a j)arallel?"(/j) If the statement above was correct, it is hard to say that the court was not worthy of contempt. In North Carolina, in 1869, a publication appeared, reflect- ing on the supreme court, from one hundred and ten members of the bar, out of about five hundred, who, however, were dis- charged on a disavowal, in a way that intimates clearly that the liberty of the press, so far as the bar is concerned, has become full-blown in that state, and showing, also, conclusively that disavowals are readily available and exceedingly effectual there. The disavowal reminds me, indeed, of one attributed to an eminent attorney, who abandoned a case in the very midst, on the ruling of the judge, thrusting his books into his green bag, and stamping down the aisle to the door, in a rage, (//) Dunham v. Slate, 6 Clarke (la.) 250. v. 1—13 1<»4 NEWSPAPER CONTEMPTS. ami who, on being called to by the judge and threatened with a line for contempt of court, whirled and replied: "Your honor, I have expressed no contempt for this court, but have, on the contrary, done my utmost to conceal my real feelings;" and then continued his exit, muttering that he found it very hard to do so ! The North Carolina utterance was in the following words : "a solemn protest of the bar op north CAROLINA. "The undersigned, present or former members of the bar of North Carolina, have witnessed the late public demonstra- tions of political partisanship, by the judges of the supreme court of the state, with profound regret and unfeigned alarm for the purity of the future administration of the laws of the land. Active and open participation in the strife of political contests by any judge of the state, so far as we recollect, or tradition or history has informed us, was unknown to the peo- ple until the late exhibitions. To say that these were wholly unexpected, and that a prediction of them by the wisest among us would have been spurned as incredible, would not express half of our astonishment, or the painful shock suf- fered by our feelings, when we saw the humiliating fact ac- comphshed. Not only did we not anticipate it, but we thought it was impossible in our day. Many of us have passed through political times almost as excited as those of to-day, and most of us recently through one more excited, but never before have we seen the judges of the supreme court, singly or en masse, moved from that becoming propriety so indispen- sable to secure the respect of the people, and, throwing aside the ermine, rush into the mad contest of politics, under the excitement of drums and flags. From the unerring lessons of the past we are assured that a judge who openly and publicly displays his political party zeal renders himself unfit to hold the balance of justice, and that whenever an occasion may offer to serve his fellow partisans he will yield to the temptation, and the 'wavering balance' will shake. It is a natural weakness in man that he who warmly and publicly identifies himself with a political party will be tempted to uphold the party that NEWSPAPER CONTEMPTS. li)5 upholds him, and all experience teaches us that a partisan judge cannot be trusted to settle the great principles of a political constitution while he reads and studies the book of its law^s under the banners of a party. "Unwilling that our silence should be construed into an indifference to the humiliating spectacle now passing around us, influenced solely by a spirit of love and veneration of tlie past purity which has distinguished the administration of the law in our state, and animated by the hope that the voice of the bar of North Carolina will not be powerless to avert the pernicious example which we have denounced, and to repress its contagious influence, we have, under a sense of solemn duty, subscribed and published this paper." The court, thus assailed by its own bar, in part, cited the signers to answer, and the return was essentially that the l^ublication did not tend to impair the respect due to the authority of the court; that it was not libellous; that the paper was prepared during the presidential canvass, and was withheld until after the close thereof, to avoid the appearance of issuing a partisan document ; that its purpose was to ex- press disapprobation of the conduct of individuals occupying high judicial stations, but that, so far from committing an intentional contempt of the supreme court, or impairing the respect due to its authority, the motive of the respondents was to preserve the purity which had ever distinguished the administration of justice by the courts of the state. The court, in self-defence, declared : "The paper is drafted with all the adroitness of a skilful lawyer, and, under cover of 'love and veneration for the past purity which has dis- tinguished the administration of law in our state,' aims a deadly blow at the court to which that sacred trust is now conhded. Stripped of the beautiful dress by which it is art- fully disguised it amounts to this : A judge who openly and publicly displays his political party zeal renders himself unfit to hold the 'balance of justice,' and whenever an occa- sion may offer to serve his fellow partisans he will yield to the temptation, and the 'wavering balance will shake.' 'Never before have we seen the judges of the supreme court, singly l;i(3 NEWSPAPER CONTEMPTS. or cn masse, rush into the mad contest of politics under the excitement of di'ums and flags;' therefore, the supreme court, which is composed of these judges, is 'unfit to hold the bal- ance of justice,' and will, on occasion, yield to temptation in favor of a fellow partisan. "If you hurt the head, or arm, or leg, or limb, or member, or any part of the body, you hurt the man. And the idea of an intention to injure the character of the justices who com- pose the supreme court, singly or en masse, without an inten- tion to injure the court, is simply ridiculous. "The only allegation of fact on which rests this' 'solemn protest' is that the 'judges singly or en masse did rush into tiie mad contest of politics under the excitement of drums and flags.' Is this allegation of fact true, or is it false? There is no pretence that it is true. It is said this is a figure of speech suggested by something that w'as expected to occur but never did occur, so the allegation of fact is false, and the inference drawn from it is also false. "In our judgment the paper is libellous, and 'doth tend to impair the respect due to the authority of the court.' Indeed, the learned counsel did not press this point, and were content to take the ground that there was no criminal intent. Every man is presumed to intend the natural consequence of his act. If one wilfully sets fire to his own house, which is so near his neighbor's house that if the one burns the other must burn also, and both houses are burned down, the man is guilty of arson — the criminal intent is presumed. So, in an indict- ment for libel, this ground would be untenable except on proof of insanity. ********* "In this proceeding, as the court is judge in its own case in the Jirst instance, where a case is made out in the judg- ment of the court, the party in the last instance is allowed to try himself. His intention is locked within his own breast, is known to himself alone, and he is allowed to clear himself by his own avowal, "(c) But the supreme court of Illinois made more thorough work of its visitation on the proprietor and managing editor of the (c) Mutter of Moore et al. 63 K^. C. 398. NEWSPAPER CONTEMPTS. 197 Chicago Evening Journal, although a similar disavowal was interposed, and although the former never had seen the arti- cle until it was printed. The court, however, was divided, standing four to three. The publication was made in regard to a murder case pend- ing before the supreme court on error, in October, 1872, and was as follows : "the case op eafferty. "At the time a writ of supersedeas was granted in the case of the murderer, Chris. Eafferty, the public was blandly as- sured that the matter would be examined into by the supreme court and decided at once; that possibly the hanging of this notorious human butcher would not be delayed for a single day. Time speeds aw^ay, however, and we hear of nothing definite being done. Eafferty's counsel seems to be studying the policy of delay, and evidently with success. The riff-raff who contributed fourteen hundred dollars to demonstrate that 'hanging is played out' may now congratulate themselves on the success of their little game. Their money is operating splendidly. We have no hesitancy in prophesying clear to the end just what will be done with Eafferty. He will be granted a new trial. He will be tried somewhere within a year or two. ' He will be sentenced to imprisonment for life. Eventually he will be pardoned out. And this in spite of all our public meetings, resolutions, committees, virtuous indignation, and what not. And why? Because the sum of fourteen hundred dollars is enough nowadays to enable a man to purchase immunity from the consequences of any crime. If next winter's session of the legislature does not hermetically seal up every chink and loophole through which murderers now escape, it will deserve the bitter censure of every honest man in Illinois. We must simplify our modes of procedure in murder trials. The criminal should be tried at once, and when found guilty should be hanged at once, and the quicker hanged the better. The courts are now com- pletely in the control of corrupt and mercenary shysters — the jackals of the legal profession — who feast and fatten on 193 NEWSPAPER CONTEMPTS. liuninn blood spilled by the hands of other men. All this must be remedied. There can be found a remedy, and it nuist be found." The court, while commenting upon the disastrous conse- quences of such publications, even upon the supreme court, and citing authorities as to constructive contempts, enter this disclaimer : "Let us say here, and so plainly that our position can be misrepresented only by malice or gross stupidity, that we do not deprecate, nor should w^e claim the right to punish, any criticism the press may choose to publish upon our decis- ions, opinions or official conduct, in regard to cases that have passed from our jurisdiction, so long as our action is correctly stated, and our official integrity is not impeached. The re- spondents are correct in saying, in their answers, that they have a right to examine the proceedings of any and every department of the government. Far be it from us to deny the right. Such freedom of the press is indispensable to the preservation of the freedom of the people. But, certainly, neither these respondents, nor any intelligent person con- nected with the press, and having a just idea of its responsi- bilities, as well as its powers, will claim that it may seek to control the administration of justice, or influence the decision of pending causes." Justice Scott, dissenting, denied the power of courts to pun- ish constructive contempts, this power being limited properly to contempts committed in the presence of the court. In addition to this. Justice Sheldon, also dissenting, said he was unwilling to admit that an appellate court was likely to be affected or embarrassed, in the administration of justice, by newspaper paragraphs. The editor was fined two hundred dollars for admitting the article after seeing it, although it was not written by him; and the proprietor one hundred dollars for not watching out for it, it would seem. But they were consoled by the ultimate hanging of Eaflerty.(fZ) I presume there is no need of pursuing this subject any further than to remark that, while the liberty of the press (d)reoijlet\ AVilson, G4 111. 195. NEWSPAPER CONTEMPTS. 199 ought to be maintained, there is, at the present time, a very great danger to the perpetuity of all our institutions arising from the disorganizing consequences of newspaper licentious- ness. The limit laid down by the majority of the court in the Journal case may be found, perhaps, to be the true one after all. There must be barriers erected somewhere, and they might as well, probably, stand at this point as at any other boundary. The Iowa court has held that, notwithstanding a disavowal of intentional disrespect, the meaning and intent of a publication may be proved by appropriate evidence, and judgment be rendered accordingly, (e) (6)Henry v. Ellis, 4t) la. 305. PART II. SPECIFIC ORIGINAL JURISDICTIONS. PREFA-TORT NOTE. In treating of the topics of this Part of the present Treatise we shall have occasion to notice — First, Specific Jurisdictions of a general nature, as Common Law, Equity, Admiralty, Probate, etc.; and, second, Specific Jurisdictions of a special nature, as Habeas Corpus, and the like. Moreover, it will be needful to keep original and appellate jurisdictions distinct, although both co-exist often in the same court. The latter are reserved for the second volume. The matters of exclusive and concurrent jurisdiction have very little practical importance, as to state courts, any further than the principle goes which is explained in the First Part, namely: that where two equal courts have concurrent jurisdiction of the subject- matter of a cause, the one first acquiring actual jurisdiction of the cause retains it free from interference by the other. It is much to be desired, and, I think, it will eventually be realized, that such a thing as concurrent jurisdiction should not exist, but that all courts should have distinct, and not overlapping, boundary lines thrown around their legitimate spheres of actioQ. (201)* THE JURISDICTION^ OF COURTS. PART II. SPECIFIC ORIGINAL JURISDICTIONS. CHAPTEE I. THE COMMON LAW. I $ 198. Explanation of the common law, 190. Basi.s of jurLsprudence. 200. Modification of the common law. 201. Distinction between principles and rules. 202. The standard of judgment herein. 203. What the common law is. 204. Examples of modification. 205. No modification to be implied from a statute. 206. Effect of statutes prescribing remedies. 207. Common law as to the United States courts. 208. Sources of knowledge of common law — general rules. 209. Effect of a want of early precedents in this country. 210. Exemplifications of public grants. 211. Process of attachment. 212. Remedies in United States courts. 21.3. Offences and crimes. 214. Felony merging private wrongs. § 198. Although what we term the common law was derived from the common law of England, yet it is not, in all respects, identical therewith. The general principles were held to he (2U;!) 504: THE COMMON LAW. the MrtlirigUt of the colonies; but the system was adopted, nioditied, or discarded, according as it was suitable to the situation and circumstances of the settlers. (a) In conse- quence, the system has never been in force, in all of its provisions, anywhere in our country. No state has ever adopted it, with all its incidents; so that what is common law in one state may not, in some particulars, be so in another state; and the judicial decisions, and usages, and customs in each are to be taken as the true criterion. And there is no principle prevading the Union, with the authority of law, which is not embodied in the constitution or laws. Even as to the federal system itself, the common law can only be made a part of it by actual legislative adoi5tion.(^) § 199. Nevertheless, certain states excepted, the common law is the chief basis of the jurisprudence of the state ;(c) and hence, in the absence of evidence to the contrary, each one presumes the common law to prevail in sister states, the same as within its own limits, or the same as it exi«ited in England. ((Z) But a similar presumption does not, of course, exist as to statutes, for this would directly contradict 'the presumption as to the existence of the common law.(e) California includes within the exception the states of Florida and Texas, as well as Louisiana. And the court thus lay down the distinction : "In the present case there is no proof what the law of Texas is upon these subjects. One of the counsel of the defendants insists that, in the absence of such proof, the rule is to presume the existence of the common law, (a) Van Ness «. Pacard, 2 Pet. 144. (5) Wheaton v. Peters, 8 Pet. 658, As expressed by the Alaliama 659. court: " The common law of Eng- (cjBaines v. Schooner, 1 Bald. land is not in all respects the com- (C. C.) 557. mon law of this state. It was (d)Shepherd ». Nabors, 6 Ala. 637; adopted and prevails here only so Walker's Adm'r o. Walker's Adm'r, far as it is consistent with our in- 41 Ala. 358 ; Pomeroy r.Ainsworth, stitutions and the public policy of 22 Barb. 129; Miles v. Collins, 1 tlie state as deduced from ourlegis- Met. (Ky.) :512; Titus v. Scantling, lation." Nelson w.McC'raryg^fl^.iiO 4Blackf. 92; Schuman ti. :Mar!cv, Ala. 309; R. R. «. Peacock, 25 Ala. 29 Ind. 4til. 229; Barlow v. Lainl)ert, 2S Ala. (.')II()Ughtaling v. Ball, 19 Mo. ^*^^- 8G ; VVliite v. Knapp, 47 Barb. 554. THE COMMON LAW. 205 and to be governed by its principles. There is no doubt that the common law is the basis of the laws of those states which were originally colonies of England or carved out of such col- onies. It was imj)orted by the colonists and established, so far as it was applicable to their institutions and circumstances, and was claimed by the congress of the United States, in 1774, as a branch of those ' indubitable rights and liberties to which the respective colonies ' were entitled. 1 Kent's Com. 343. In all the states thus having a common origin, formed from colonies which constituted a part of the same empire, and which recognized the common law as the source of their jurisprudence, it must be presumed that such common law exists. It has been so held in repeated instances, and it rests upon parties who assert a different rule to show that matter by proof. A similar presumption must prevail as to the exist- ence of the common law in those states which have been established in territory acquired since the revolution, where such territory was not, at the time of its acquisition, occupied by an organized and civilized community; where, in fact, the j)opulation of the new state, upon the establishment of govern- ment, was formed by emigration from the original states. As in British colonies, established in uncultivated regions by emi- gration from the parent country, the subjects are considered as carrying with them the common law, so far as it is aj^pli- cable to their new situation, so, when American citizens emi- grate into territory which is unoccupied by civilized man, and commence the formation of a new government, they are equally considered as carrying with them so much of the same common law, in its modified and imjjroved condition, under the influence of modern civilization and republican principles, as is suited to their new condition and wants. But no such presumption can apply to states in which a government already existed at the time of their accession to the country, as Flor- ida, Louisiana and Texas. They had already laws of their own, which remained in force until by the proper authority they were abrogated, and new laws were promulgated. With them there is no more presumption of the existence of the com- mon law than of any other law. They were independent of the 0()(3 THE COMMON. LAW. Eii^'lish liiw iu their origin, and hence no presumption of the existence of the common hiw of England can be indulged. In countries conquered and ceded to England the common law has no authorit}' without positive enactment, and for the same reason that they were not part of the mother country, but dis- tinct dominions. 1 Black. 107; 1 Story on Const. 150. "As Texas was an independent country at the time of its accession to the United States, having laws of its own, not being carved out of the ancient colonial provinces of England, like the original thirteen states, or formed by immigration into an uncultivated country from those states,* but from a Mexican province by a successful revolution against the re- public of Mexico, no presumption can arise of the existence therein of the common law, which is the basis of the jurispru- dence of the other states. "The question then recurs as to what is presumed as to the law of Texas, in the absence of any proof on the subject. We can perceive only one way in which the question can be answered, and that is to presume the law of that state to be in accordance with our own. We are called upon to deter- mine the matter in controversy, and are not at liberty to follow our own arbitrary notions of justice. We cannot take judi- cial notice of the laws of Texas, and we must, therefore, as a matter of necessity, look to our own laws as furnishing the only rule of decision upon which we can act ; and, to meet the requirement that the case is to be disposed of according to the laws of Texas, the presumption is indulged that the laws of the two states are in accordance with each other. The authorities, with some exceptions, are to this effect. "(/') This reasoning appears sound, so far as it is applicable. Nor is it necessarily contradicted by the principle that terri- tory acquired must be held according to the constitution and laws of the nation acquiring it, and not according to those of *But Texas was mainly settled at (/)Xoiris v. Harris, 1.5 Cal. 2.')2, first by emigration from the United citing Smoot v. Baldwin, 1 Martin, States, which fact, it seems, ought N. S. (La.) 523; Allen v. Watson, to support the ordinary presurap- 2 Hill, (S. C.) 319 ; Monroe «. Doug- tion, according to the above reason- lass, 1 Selden, (N. Y.) 452; Castle- ing of the court. man «. Jeffries, 60 Ala. 381. THE COMMON LAW. *" 207 the government by which it is ceded ;(^) since, as we shall see hereafter, the United States government merely recognizes the common law as it exists in the individual states. The principle, then, is, that on a common law question the presumption obtains, in the absence of j)roof to the contrary, that the common law is in force in a sister state. The excep- tion is, a settled and organized territory acquired by the United States from a foreign power. § 200. The modifications of the common law, as it exists among us, arise from three sources : (1) The circumstances of the territory adopting it ; (2) English statutes ; (3) domestic statutes. The first of these we have already alluded to, inci- dentally. But we may remark further upon it that the modi- fying circumstances are such as render the common law inap- plicable to the actual situation, or repugnant to other rights and privileges, of the residents of the locality. (/i) This is a matter resting largely in the discretion of a court applying the rules, and is, therefore, somewhat indefinite, and proportion- tionately dangerous. For, as the supreme court of Pennsyl- vania has justly observed: "We should have a motley sys- tem of patchwork, indeed, if the principles of the law were to be wrested or bent to obviate every inconvenience that may be felt in a single case, or even in a few cases. Even courts of equity are governed by general rules, which are sometimes inadequate to the doing of exact justice in particular cases. There can be no rule for the application of the argument ahinconvenientl, but every court must, in that respect, be governed by a sound discretion on a view of the whole ground, "(i) As a safeguard, then, it is needful to keep in sight what it is in which the common law system consists. In a case before the court of errors, in New York, Spencer, senator, remarked: "I admire that principle of flexibility in the common law which enables it to be adapted to the ever varying condition of human society; and it is, in that respect, unquestionably sujierior to any written code. Bat I understand that flexibility to ((7)Po]lanrs [jcssce v. Hagnn, 3 (''irA'le v. Uiclianls, Gil. 142. (5)Noonan v. State, 1 S. & M. (y)Vau Ness v. Packard, 2 Pet. (Miss.) 573; Dawson v. Shaver, 1 144. Blackf. 205. THE COMMON LAW. 213 at discretion. If it gives the same remedy, it is merely con- firmatory. But if it denies or positively withholds the com- mon law remedy, this is a repeal. (c) § 207. There is no common law of the United States, as contradistinguished from the common law of the individual states; which arises, however, from the fact that the United States circuit and district courts, instead of administering this or any particular system, conform to the law of the' states where they are situated — at any rate in civil matters. ()Sackett v. ISackett, 8 Pick. 317. Me. 404. THE COMMON LAW. 217 emigration of our ancestors, and, moreover, being "a recog- nition, in the most solemn form, by the government itself, of the validity of its own grant under its own seal, and there- fore importing absolute verity as matter of record. "(2>) Also the statute of 8 and 9 William III. c. 11, § 7, allowing a survivor in an action of trespass to continue the suit, being in amendment of the common law, as were the above men- tioned statutes, is probably a part of our common law, al- though this has been rather loosely held in Massachu setts, ((/) Also the statutes of Edw. III. c. 1, defining the jurisdic- tion and powers of justices of the peace, are part of our com- mon law.(_?') And, in New York, the statute of G Anne, c. 3, as amended prior to April 19, 1775, by 14 George III., providing that there shall be no liability for damage done by an accidental fire, is part of the common law of that state. (s) § 211. The process of attachment does not belong to the common law as to foreigners. "The process of the common law could not reach foreign coriDorations, for the plain reason that they were not inhabitants of the realm, and had no cor- porate existence within it. This was equally true in respect to natural persons not inhabitants of the realm, and not found within it. Foreigners who were non-residents could not be served witli process to af)i3ear in any of the courts of ■common law, nor could their property be attached to compel their appearance. Whenever and wherever, in any such •cases, process can be served upon the property either of for- eign corporations or of foreign natural i^ersons who are non- residents, the authority to do so results either from special ■custom, or from statute provisions" (^) — indeed, almost exclu- sively from the latter. Neither are matters of impeachment by a legislature, or senate rather, within any rules of the common law, so far as the organization of the court is concerned, since there is so (p)Satterson v. Winn, 5 Pet. (U. (r)Comnioiiwc:i]tli v. Leach, 1 S.) 240. Mass.' ")'.». (gjJioynlon v. Kees, !) Pick. 532. (.'*)[jansing ». IStone, 37 Barb. 17. (^Clarke v. Nav. Co. 1 Slory C. C. 538. 0-(S THE COMMON LAW. little resemblance to the British j^arliament in our legislative jissemblies. Yet, as to proceedings, the nature of the duties imposed, and, in a degree, the limits of the powers of such court, the common law principles may be an effective guide. («) Yet, in no case, can any court of impeachment claim the full extent of the powers of parliament ; so that, in this regard, the restrictions only upon those powers are to be regarded as authoritative. § 212. In regard to remedies, merely, the United States courts are to be regarded as having a kind of distinct common law jurisdiction, so that, in these, they do not conform to the practice of state courts, but to the principles of common law and equity defined in England, (r) § 213. As to offences and crimes at common law there is quite a variance in the different states. As, for example, in Indiana, there are no common law offences ; but crimes and misdemeanors must be defined by statutes prescribing a defi- nite punishment, or they are not punishable. (?r) But, for- merly, the opposite was held to be the case. (a;) It is so, like- wise, in Ohio. And, in Iowa, it has been held that sodomy, however abhorrent in its nature, was not a punishable crime because of the absence of statutory definition; although the court sa}^ : "It would be a most difficult matter to administer criminal justice under our code of procedure, without the aid of common law, in the light of which statutory crimes are to be interpreted, and their definitions, if defective, to be ex- pounded and explained. While, therefore, the principles of the common law do enter into all our criminal adjudications, when the jurisdiction of our courts over criminal offences has been established by law, still they do not confer upon the courts, in this state, the power to try and punish an offence that is such at common law, but which has not been ordained as such by the supreme law-making power of the state. "(?/) But in most of the states the criminal common law has 26. (M)State ex rd. v. Hillyer, 2 Kan. (?f) Hackney «. State, 8 Ind. 405. {.r)FulleK V. State, 1 Rlackf. fi5, (c) Robinson v. Campbell, 3 Wheat. 66 ; State «. Bortheal. 6 Blackf. 474. 22L and note. (2/)Estes c. Carter, 10 la. 401. THE COMMON LAW. 211> been adopted under the same restrictions and limitations as civil actions therein. In Maryland even the law of conspiracy was (in 1821) held to have been adopted, inasmuch as it was suitable as well to the circumstances of the colonists as to the state of society in England. (^) In Connecticut the matter was quite earnestl}' contested in a dissenting opinion by Peters, J., against the majority, consisting of four judges, who on their part held, very reasonably, I think, that "it is indispensably necessary that there should exist a common law, on the broad principles of public convenience and necessity, defining crimes and prescribing adequate punishments. To determine, by statute, every ofTence, and direct the punishment which shall be inflicted, has not, so far as I know, ever been attempted, and would be nearly impracticable. The community must, at least, be left exposed to injuries the most atrocious, and the evils resulting would be much greater than any reasonable mind will anticipate from the exercise of a sound discretion in the application of principles and analogies which the com- mon law sui3plies."(rt) But Peters, J., maintained most vigorously, in opposition, that the common law had never been adopted as to crimes, nor, indeed, even the civil portion of it, "I have sought in vain," he says, "in the history and legislative acts of our ancestors, for a confirmation of this doctrine. But it is apparent to my understanding that their sole object was to found a pure government in church and commonwealth, 'surely bottomed on the word of God;' and that they brought with them no more aft'ection for the common law than the canon law, the court of star chamber, and high commission, from which they fled with horror and detestation ! Accord- ingly, we find, in the first page of their statutes, a solemn provision against all indefinite laws and discretionary pun- ishments, which remained for substance the same until the adoption of the constitution. ***** in this state our courts seem not to have considered the common law (3)State V. Buchauan, 5 Han. & J. (a)State v. Danfortli, 3 Conn. 114. 356. 220 THE COMMON LAW. in force propno vifjore, but the judiciary as auxiliary to tlie legislature, extending the written law, and supplying its defects. ****** At what period of our judicial history our courts assumed this prerogative of the aula regis does not appear; but it does appear that, in 1743, the superior court suspended judgment against a malefactor convicted of an atrocious mayhem, which was felony by common law, because no punishment was prescribed by statute, and peti- tioned the legislature for direction. ***** The common law may be extended to all acts contra honos mares, which vary with climate, and the education and habits of men. Thus, in some countries, to kill or enslave a negro, an Indian, or a Christian, is an atrocious crime; in others, a mere haft- atelle. ****** It is said the exercise of this power is ne'cessary. If so, statutes are unnecessary. If the judiciary is competent to adopt statutes, define crimes, and prescribe punishments, a legislature is needless. Whatever may have been the effect of constitutions in other states upon the common law, many of which have adopted it, it was cer- tainly the object of the projectors of our constitution to separate, define, and limit the constituent powers of govern- ment. "(?>) As to the United States courts the decisions on this point have denied the existence of a common law cognizance of crimes; the decisions, however, not being unanimous, but bj a majority. It is said: "The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offence. Certain implied powers must necessarily result to our courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers; to fine for contempt, imprison for contumacy, enforce the observance of order, etc., are powers which cannot be dis- pensed with in a court, because they are necessary to the ex- ercise of all others; and, so far, our courts, no doubt, possess powers not immediately derived from statute, but all cogniz- (5)Pp. lis, 120, passim. THE COMMON LAW. 221 ance of criminal law cases, we are of opinion, is not within their implied powers. "(c) This was in 1812; but in 1816 the court was not united on it, and said: "Upon the question now before the court a difference of opinion has existed, and still exists, among the members of the court. We should, therefore, have been willing to hear the question discussed upon solemn argument. But the attorjiey general has de- clined to argue the cause, and no counsel appears for the defendant. Under these circumstances the court would not choose to review their former decision, in the case of the United States v. Hudson and Goodwin, or draw it into doubt. "(fZ) Justice Story has declared that, in his judgment, the whole difficult}^ and obscurity on the subject has arisen from not keeping in view the distinction given above in the language of the Iowa court, and which he sets forth thus : "I admit, in the most explicit terms, that the courts of the United States are courts of limited jurisdiction, and cannot exercise any authority not confided to them by the constitution and laws made in pursuance thereof. But I do contend that, when once an authority is lawfully given, the natui'e and extent of that authority, and the mode in which it shall be exercised, must be regulated by the rules of the common law. "Whether the common law of England, in its broadest sense, including equity and admiralty, as well as legal doc- trines, be the common law of the United States, or not, it can hardly be doubted that the constitution and laws of the United States are predicated upon the existence of the common law. This has not, as I recollect, been denied by any person who has maturely weighed the subject, and will abundantly appear upon the slightest examination. The constitution of the United States, for instance, provides that the 'trial of all crimes, except in cases of impeachment, shall be by jury.' I suppose that no person can doubt that, for the explanation of these terms and for the mode of conducting trials by jury, jjecourse must be had to the common law. So the clause (c)United States t>. Hudsou et cU. ((f)Unifed States v. Coolidge, 1 7 Crunch, 33. Wheat. 415. 2'22 THR COMMON LAW. tlijit -the judicial i^ower shall extend to all cases in law and ) And it is no bar to a proceeding in equity that (a)Boyco's Ex'rs ». Grundy, 3 Pet. 215. (i)Nevilt V. Gillespie, 1 How. (Miss.) 110; Swift v. Larnxbee, 31 Conn. 237. It is not enough that there may be a pomble remedy at law; and more especially if a remedy at law lia.s become embarrassed by the fraud of a defendant will equity entertain jurisdiction, llichardson V. Brooks, 52 Miss. 119. The legal remedy must be plain and adequate. Thus, although the general rule is that a court of equity is not the proper tribunal for determining the legal title to lands, yet the rule does not apply where, in a suit at law, the title comes into the con- troversy only incidentally, so that a decision for one party will leave an apparent record title in the other. \i. 11. V. Gordon, 41 Mich. 421.1. Equity may dear clouds from legal titles, (Handy v. Noonan, 51 Miss. 16(j,) especially under statutory au- thority; but it is a limited power, and cannot l^e invoked merely to try conflicting titles to lands, or to usurp the place of ejectment suits tit law. And it is held that the jurisdiction does not draw to it the powers incident to the exercise of general equity jurisdiction, to take tontrol of the entire controversy us to title, possessory rights, and claims to rents and profits. Phelps «. Harris, 51 Miss. 789. And so a suit in equit}', to recover the posses- sion ofl'inds under a legal title, and for mesne profits, cannot be sus- tained ; because this is essentially an action of ejectment. Cavedo v. Billings, 16 Fla. 2(51. And so, equity will not entertain a suit to settle boundaries between land own- ers. Hill 0. Proctor, 10 W. Ya. 59. So, where the title to personal prop- el ti/ can he settled in an action of replevin, (which is almo.st or quite invariably the case,) equity will not intervene, even on a petition hy the claimant that his vendor and the plaintiff may be compelled to inter- plead and settle the question of title between them. Long v. Barker, 85 III. 431. Even if equity may entertain ju- risdiction, yet, if questions of own- ership and possession and dedica- tion to the public use arise, and are left doubtful on the evidence, it is held that it is proper to dismis.ss the bill without prejudice, so that the doubtful questions may be set- tled in a legal proceeding — after which either party will be at lib- erty to invoke the court of equity to prevent vexatious litigation as tothes;ime subject-matter. Hacker V. Barton, 84 111. 313. And so, equity will not entertain a bill merely to ascertain whether the EQUITY. 225 the complainant had commenced an action at law, which he relation of mortgagor and mort- gagee exists. Micou « Ashurst, 55 Ala. mi. As to the administration of an estate, equity will not ordinarily en- tertain jurisdiction therein. There must be some special reason for guch interference with a probate court. If it appears that the pro- bate court can grant due relief the parties will be left to the remedies thereby available. Heustis «'. John- son, S4 111. 61. Nor will a court of equity entertain an action merely to construe the provisions of a will relating, not to trusts, liut only to legal rights. Chipman v. Mont- gomery, 63 N. Y. 221 ; Whitman v. Fisher, 74 111. 149. And so, a court of equity will not determine the right of one claiming' to be heir of an intestate by contract and adop- tion. Ross ». Ro.ss, 123 Mass. 212. Nor will equity entertain a bill to compel an administrator to perform his legal duty, (Collins v. Stephens, 58 Ga. 284,) or intermeddle in mat- ters of settlement on behalf of mi- nor distribute js oncoming of age. Piatt V. Longwortli, Ex'r, et al. 27 O. St. 160. But where, by statute, an equity court has the right to decree the sale of lands by an ad- mir istrator, the court has incidental power to enforce a bond given therein for the proper application of the proceeds. Brunini v. Pera, 54 Miss. 651. And may direct the proceeds of crops raised on lands by an administrator under the order of the chancery court. Evans v. llobertson, 54 Miss. 683. Equity will not supplj'' mere de- fects of statutory remedies. Janney V. Buell, 55 Ala. 408. Nor can it relieve parties from the mere effects of & failure to ereeute an instrument, v.l— 15 as, for example, an instrument in- tended to effect the ailoption of a child. Long v. Hewitt, 44 la. 363. And so, equity will not enforce a volvntary contract, or une.vecuted gift, even in matters of family set- tlement. AVadhams «. Gay, 73 111. 417. In regard to mntters of account, it is not every account which will en- title a court of equity to interfere ; as, for instance, a claim of one ex- ecutor against a co-executor, for a pro rata share of commissions paid to and retained by the former, is no foundation for an equitable suit, since it can lie enforced at law. Bellamy «. Hawkins, 16 Fla. 737. Nor can a corporation sue its former officers, in equity, for the misappro- priation of funds coming into their hands while they were officers. Bay City Bridge Co. ». Van Etten, 36 Mich. 210. And if, on the for- mation of a corporation, two per- sons enter into an agreement that one of them, as a trustee, shall hold certain shares of stock, to be issued to the other on payment of assess- ments, a failure to issue the stocks on such payment will not justify a suit in equity on the ground that the holder had sold the shares and appropriated the proceeds, since there is an adequate remedy at law in such case. Frue v. Loring, 120 Mass. 507. And a bill alleging that the defendant had agreed to pay the plaintiff' a certain conynission on merchandise consigned to the de- fendant either by the plaintiff' or by other persons ; that there had been large consignments thus made, but to what amount the plaintiff is not informed ; that the accounts are too complicated to be conveniently adjusted in a court of law; and '220 EQUITY. finally abandoned on discovering that it would be of necessity inotfectual.(c) § 216. The jurisdiction, moreover, is not ousted merely by the fact that courts of law have come to exercise a kind of equitable jurisdiction. But the correct view in such case is held to be that, where equity originally possessed exclusive jurisdiction, but afterwards courts of law came to exercise an equitable juris- diction, this will be regarded as concurrent, so that a party may proceed in either court for relief, notwithstanding the rule in other cases that, where a court of law can give a full and adequate remedy, equit}' will not take cognizance of a cause. ((Z) But this cannot apply where all distinctions be- tween law and equity are done away by legislative enactment, and there is, therefore, but a single forum for all matters in controversy, (e) It is, on the general principle herein stated, that a court of equity will decline to decide whether a private nuisance praying for a discovery and for an account, lias been held not to lie maintainable. Badger v. jNicXa- mara, 123 Mass. 117. Accounts must be mutual to jus- tify interference, and not all on one side, and must consist of a series of demands and payments, and not mere set-offs bj' way of payment. Porter v. Spencer, 2 Johns. Ch. 169; Pearl v. Nashville, 10 Yerg. 179; Foley V. Hill, 1 Phillips, 407 ; War- ren V. Coal Co., 83 Pa. St. 441. And as to a mechanic's lien, under a statute which gives priority to the claim as against subsequent convey- ances, the statutory relief must be relied on, and equity will not inter- fere to settle the respective rights of the lien-holder and incum- ijrancers or purchasers. Cole v. Colby, 57 N. PI. 101; Colly «. Dr.usrhty, 62 Me. .501 ; Wall v. Rob- inson, 115 Mass. 429. Yet, where tiiere is a deed of trust on land, and the land is sold to two purchas- ers, one of whom is compelled to pa V the amount of the mortgage debt in order to protect his own portion of the land, equity will apportion the encumbrance, and compel the other to contribute his share, and pay it to the purchaser who has dischartred the claim by j-ayment. Briscoe «. Power, 85 111. 420. In Alabama it has been held that a statute allowing suits at law to re- cover for labor perfoimed for the benetit of trust estates has the effect of ousting equity jurisdiction there- for. Askew V. Myrick, 54 Ala. 30. Equity still appears to have juris- diction to establish a claim founded on an instrument under seal which is lost. Patton v. Campbell, 70 111. 72; Hickman v. Painter, 11 \V. Va. 386. (c)McCloskev ». McCormick, 44 111. 33>;. (d)Heath v. Bank. 44 X. II. 177. (ejCarpeuter v. City, 30 Cal. 442. EQUITY. 227 ■exists or not, even for the imriDose of an injunction, until the party asking the interference of the court has established his rights by law.(/) § 217. It may, j)erhaps, be regarded as a partial exception to the above rule, that a court of equity will entertain a cause in order to repress a multiplicity of suits at law; a principle well established wherever distinct ecpiity powers exist. It applies where, by tlie interposition of the court, the plaintiff is relieved against the necessity of bringing a large number of separate suits against different individuals, merely to quiet the same common right, where only the same right would l)e involved in each. And, on the same principle, a court of equity will interpose to put an end to vexatious and ruinous litigation, where a party has satisfactorily established his legal rights. (r/) And the principle applies either to a plaintiff or defendant, liable to a multiplicity of suits. But, in such cases, there must be such a unity of interest, on one side or the other, as to bring the litigation within the ordinary rules of equity pleading. (//) An apparently marked exception is laid down by the supreme court of the United States, in a case wherein it was decided that even although an action would lie under a stat- ute, and although a writ of mandamus might be issued, yet equity would interfere. Nevertheless, exceptional as it appears, the equitable jurisdiction was placed on the ordinary ground of inadequacy of the law. The case was this : The town of Beloit, Wisconsin, by authority of the legislature, subscribed to the capital stock of (/)Eastman v. Co. 47 X. H. 77. Lave no jurisdiction to order such And where the law provides for abatement. Remington «. Foster, the lieeping of jails in a health}^ 42 Wis. 60S. Unless, indeed, many condition, equity has no jurisdic- persons are alike affected, and by tion to enjoin the use of a particu- joining ma}^ prevent a multiplicity lur jail on the ground that it is a of suits. Cadigan «. Brown, 120 nuisance, and endangers the health Mass. 493. of the prisoners confined therein. ((/)Nevitt v. Gillespie, 1 How. iStuart V. Supervisors, 83 III. 341. (Miss.) 110. And where a statute authorizes the (7i)Swift «. Larrabee, 31 Conn. (ibaleiaent of private nuisancfis, in 240. actions at law, equity is held to OOg EQUITY. a railroad company, and issued bonds upon the subscription. Three years afterwards the city of Beloit was formed within the same territory occupied by the town of Beloit, and the charter contained this provision: "All principal and interest upon all bonds which have heretofore been issued by the town of Beloit * * * shall be paid when the same, or any portion thereof, shall fall due, by the city and town of Beloit, in the same proportions as if said town and city were not dis- solved. And in case either town or city shall pay more than its just and equal portion of the same at any time, the other party shall be liable therefor." Suit was brought on the bonds against the town of Beloit and judgments recovered. The judgments being, unpaid, the plaintiff filed a bill against both city and town, averring that the amount of the judg- ments ought to be paid proportionately by the defendants, as provided by the above quoted provision of the charter; that the taxalle property of the city exceeded that of the town, and that, although the city ought to pay its proportion, the com- plainant was remediless at law. It also set out the propor- tions, and concluded with a general prayer for relief. It was contended that, on bonds given by the town, a joint action at law could not be brought against both town and city; that, if the city were sued alone thereon, the plea non est factum could be successfully interposed ; and that if an action of debt, founded on the statute alone, were brought, then it would be difficult [not impossible, but difficult] to settle the pro- portion between the city and town in an action to which the town was no party ; and that these facts g^'e jurisdiction to a court of equity, which was the only tribunal competent to render full justice between the parties — especially so, since, if the town were compelled to pay the entire debt, it would have an action against the city, under the statute, for con- tribution, and it is the policy of courts to prevent a circuity of actions, which is avoided by bringing suit in equit}' against both. On the other hand, it was maintained that "on merits the case was not good. Though equity is liberal in the adapta- tion of its remedies, it does not give a remedy to every party merely because he is in difficulty, nor unless his difficulty be EQUITY. 229 covered by some specific ground of equitable juristlietion. Here there is an adequate legal remedy' by mandamus. It may be a troublesome remedy, but he has it. And equity will not devise a new ground of jurisdiction because a speculator in town bonds is unlucky in his legal remedies." The court held that "the two corporations are as separate and distinct as if the territories they embraced respectively had never been united. It is obvious that, without a legis- lative provision to that effect, the city would not be answer- able at law for the debts of the town incurred before the former was created. Whether but for the statute the city would have been chargeable in equity it is not necessary to consider. The statute is conclusive as to a liability to be enforced in some form of procedure. The only question before us is whether there is a remedy in equity. It may be, as suggested by the counsel for the appellant, that an action would lie upon the statute. It is also possible that a proper case for a writ of mandamus might be made. But these inquiries are only material as bearing upon the question whether there is an adequate remedy at law. If so, a suit in equity cannot be maintained. To have this effect the remedy at law 'must be as plain, adequate and complete,' and 'as practical and efficient to the ends of justice and to its prompt administration, as the remedy in equity.* When the remedy in law is of this character, the party seeking redress must pursue it. Iilsucli cases the adverse party has a constitu- tional right to a trial by jury. 19 How. 278. The objection is regarded as jurisdictional, and may be enforced by the court sua sponte, though not raised by the pleadings, nor sug- gested by counsel. The provision upon the subject in the sixteenth section of the judiciary act of 1789 was only de- claratory of the pre-existing rule. "In the case before us the adjustment of the amount to be paid by the city will depend upon accounts and computa- tions founded upon the proper assessment rolls. In order to bind the town it is necessary that it should be made a party. This cannot be done in proceedings at law. If the town should be compelled to pa}^ the entire amount the right is given by 230 EQUITY. iho statute to recover back the proportion for which the city- is liable. This would involve circuity of litigation. The remody at law, therefore, is neither plain nor adequate. "The question whether a bill in equity will lie is disem- barrassed by this obligation. "The authority to tax for the payment of municipal liabili- ties, in cases like this, is in the nature of a trust. 4 Wall. 555. The jurisdiction of a court of equity to interfere, in all cases involving such an ingredient, is too clear to require any citation of authorities. It rests upon an elementary princi- ple of equity jurisprudence. " ' The power is reserved to a court of equity to act upon a principle often above mentioned, namely, that whenever there is a right it ought to be made effectual.' 1 Kaine's Prin. of Eq. 3. Where there is a right which the common law, from any imperfection, cannot enforce, it is the province and duty of a court of equity to supply the defect and furnish the remedy, "(i) § 218. It is no part of equity jurisprudence, accordingly, to revise or correct actual proceedings in a court of law. And so, equity will not revise, cancel or correct the records of a court of law. Farmers' Bank of Kentuckij v. Collins, 13 Bush, 139, It has no superintending power belonging to it, as to other courts ; and hence a court of equity has no right to inquire even into the proceedings of subordinate courts of special or local jurisdiction, in order to set them aside if void at law, or in order to restrain or stay them. Such proceed- ings are to be reviewed in the regular course of error or appeal. And the fact that the error of an inferior court may not be corrected by a common law certiorari, does not constitute a ground for equitable jurisdiction.( j) This principle rests upon this basis, namely: "The unfit- ness and vexation and indecorum of permitting a party to go on successively, by way of experiment, from one concurrent tribunal to another, and thus to introduce conflicting de- cisions, "(A;) And yet it has been held that a court of equity (i)Morgan v. Beloit, 7 Wall. G14. (/.jSimpson v. Hart, 1 Johns. Cli. (jj Hyatt V. Bates, 35 Barb. 316. 98. EQUITY. 231 will sometimes hear the same subject of controversy upon grounds not litigated in the court of law, and which could not have been there litigated, either for want of legal testimony outside of the oath of the party available in equity, or because it was a subject of equity jurisdiction, and therefore not ad- missible at law, or perhaps other causes ; and, in the end, may enjoin the judgment obtained on such defective proceed- ing.(^) Where there is an equitable defence, not available at law, equity may enjoin legal proceedings and draw the con- troversy to itself. CorneUns v. Morrow, 12 Heisk. 630. And, likewise, in a case which involves the charter rights of two corporations to a stream of water, it has been held that equity will enjoin suits at law, and determine the matter itself; and this is said to be on the ground of both public and i)rivate necessity. jR. Co. v. Mfg. Co. 30 N. .J. Eq. 145. It has been held that equity will enjoin an action of ejectment where the heirs of an estate have instituted such action against the purchaser at a voidable probate sale, and will thus compel the refunding of the purchase money used in 23aying the debts of the estate. Cole v. Johnson, 53 Miss. 94. But an action of ejectment will not be enjoined on the ground of an absolutely void deed, on which the j)laintitf relies; be- cause there is an adequate defence herein at law. Bishop of Chicago v. Chiniquy, 74 111. 317. Nor will a suit be enjoined on the ground of the invalidity of a village ordinance. Yates V. Bataria, 79 111. 500. § 219. Equity will not, however, undertake to supply de- fences, nor counteract the neglect of a j)arty in a legal action. Thus, where a party has a legal defence, but through care- lessness loses the opportunity afforded him of making it good in a suit at law, he has no right in equity to relief against his own default. This principle is so reasonable that it is sur- prising that any occasion should ever arise for an appellate court to announce it. And yet the attempt has sometimes been made to induce a court of equity to rectify the conse- quences of a personal negligence, but it is hardly necessary to (l)Diiud V. XelsoQ, 1 Aik. 256. <2o2 EQUITY. say it has alwaj's failed utterly of success. (wi) Hence, where rosort is had to equity, after a legal trial, the complainant must he ahle to impeach the verdict on just and equitable j^rouuds, and grounds which could not be made available in the action at law, or which fraud, accident, or the wrongful act of his opponent prevented him from setting up without his own fault or neglect. And a voluntary absence from the state is no valid excuse for failure therein.(?i) Because "every person is bound to take care of his own rights, and to vindicate them in due season and in proper order. This is a sound and salutary i)rineiple of law. Accordingly, if a de- fendant, having the means of defence in his own power, neg- lects to use them, and suffers a recovery to be had against him by a competent tribunal, he is forever precluded, "(o) And so equity will not restrain a judgment on the ground of usury or fraud even in the contract sued on, when the defence of usury liad not been interposed ;(p) nor, indeed, if it was interijosed, but the issue, on a full investigation, was found against the pleader. § 220. Nevertheless, under certain circumstances, legal proceedings will be set aside in equity ; when, for example, a party has been prevented by circumstances over which he had no control, nor could obtain control by any reasonable effort. (5) While a court of equity will never question the cor- rectness of a judgment for any irregularity, however gross, yet it will even award a new trial at law where a manifest fraud or gross injustice is shown in the act of obtaining the judg- ment, (r) But the evidence must be very clear, and it would (//i)Peoria v. Kidder, 26 111. 358; tify equity interference. Tallman Blaugliter v. Gleason, 13 Wall. 553. «. Becker, 85 111. is:]. (/OBurnleyt;. Rice, 2lTex. 183. (o)Le Guen v. Gouverneur, 1 And not on the ground of an in- Johns. Cases, (N. Y.) 430. voluntary absence by reason of po- (p)Crawford v. Winofield, 25 Tex. litif-al excitement, and threats of 415. (iicti cases cited in Res AdJ adi- vi(;l('nce from others than a party cata.) inthecau.se. Prater «. Robinson, ((^jChittenden «. Rogers, 42111. 99. 11 lleisk. 395. And the failure of (r)Crafts v. Hall, 3 Scam. 133, a witness to attend, or the forget- citing 1 .Johns. Ch. (N. Y.)4UtJ,and fulness of a witness, will not jus- 3 Johns. Ch. 275. EQUITY. 233 be a dangerous precedent to hold that random, casual expres- sions, sworn to after a long lapse of time, and improbable, withal, can be sufficient grounds for awarding a new trial. (.v) In a case where application was made for relief against a judgment at law, on the ground that it was contrary to equity, and that the complainant had a defence to all except merely nominal damages, which he was prevented from mak- ing by accident, since, at the time of the rendition of the judgment, he had necessarily been in attendance on another court, where he had prepared an affidavit for a continuance, and sent it to his attorney, which affidavit could not be used in consequence of the clerk's accidental omission to affix his seal to the jurat, the court held that the bill failed to show due diligence in the defence, because it did not directly show that the complainant had employed an attorney to appear for liim in the cause, and did not show that any motion for a con- tinuance had been made, or that there had been any pleas filed in the cause; the princij)le being that the defendant in a judgment complained of is not entitled to relief against it unless he was ignorant of the fact in question pending the suit, or it could not have been received as a defence, or he could not avail himself of it by reason of fraud, accident, or the act of his opponent, unmixed with negligence or fault on his own part.(/) A party must first exhaust his remedy in the law court, against a void judgment rendered therein, by motion to set it aside, before equity will interfere, xind although a judgment rendered out of term time is absolutely void, 3'et where a bill was brought in equity, to set aside a judgment on an injunction l)ondj on the ground that the judgment in the injunction suit itself had been rendered out of term, and was, therefore, a nullity, relief was refused, since the facts impeaching the validity of the prior judgment should have been presented in the suit on the l^ond; and, also, equity will not relieve against a judgment void on its face, such form of relief being unnec- essary in such a case.(//)* («)llcvvett »!. Liicns, 42 111. 299. (w)Dalton v. Libby, 9 Nev. 195. (<)Smitli w. Allen, (J;] 111. 475. *iiee Rex Adjadieata. I o;->4. EQUITY. ^ 221. Where a judgment is not void, but is merely erro- neous, equity will not interfere, even though it would evidently be reversed on error. But yet, where there is an abuse of the process of the law court, it has been held, in Illinois, that oquitv will give relief; as, for example, where a person know- ing the defendant in attachment is not indebted, yet, by false affidavit, secures a levy, judgment and sale, the sale may be set aside and the proceedings vacated. (t;) But I know of no just reason why the power to set aside the sale would not be inherent in the court itself, whose process was so abused, on motion, duly sustained by proof of the facts. § 222. Equity will not supervise the proceedings of a jus- tice of the peace on any other grounds than those pertaining to the proceedings of a court of record. And so, where judg- ment was rendered against a plaintiff who brought a bill to enjoin the sale of property levied upon, because, as was alleged, the judgment was a nullity, and was obtained by fraud, the court said: "If the judgment was erroneous, the remedy of plaintiff was by appeal ; if void, she had a rem- edy, by motion, to have the execution set aside. If these remedies have been lost without any fault or negligence of the plaintiff, and if we concede that the judgment is entirely void, (a question we have not examined,) still there is no ne- cessity for the interference of a court of equity to restrain the enforcement of the execution, because there is no showing that the plaintiff" cannot have an adequate and complete rem- edy at law. There is no allegation that defendants are insolv- ent, or unable to respond in damages. "(»■) >; 223. And a direct action for the pa.yment of money merely cannot be brought in equity, and without a warrant in the constitution the legislature cannot endow a court of equity with the power of determining legal questions merely, because thereby the right of trial by jury is contravened. There must be equitable grounds of relief, as contradistinguished from legal grounds, (.r) And, moreover, a court of equity cannot prop- erly be called upon, in general, to determine future rights; (»))Gilibons v. Bressler, 61 111. 112. (asjHaines' Appeal, 73 Pa. St. 171. (w)Connery v. Bwift, 9 Nev. 43. EQUITY. 235 as, for example, under a will(//) — except, indeed, where pro- tection to future rights is necessary to be afforded in the present. (^) But such cases as this, even, do not involve mere declaratory decrees as to future rights. § 224. Ordinarily penalties and forfeitures are not enforce- able in a court of equity, and, indeed, it has been declared that courts of law will exercise jurisdiction in civil forfeitures with great reluctance, and only in clear and positive cases. («) And, in equity, penalties, forfeitures, and securities for con- ditions broken, are strictl}' regarded as mere securities for the payment of money or performance of terms, and where compensation can be made for breach, in some other mode, relief will be afforded against the rigid enforcement of the let- ter of the contract. And this is said to be upon the principle that a court of equity is a court of conscience, and will per- mit nothing unconscionable to be inflicted within its jurisdic- tion. (7;) § 225. A court of equity will not inquire into the validity of elections, even in case of an omission of the particular case from the operation of the general law as to contested elec- tions, unless such jurisdiction be expressly conferred by stat- ute, (c) § 220. Although equity will not exercise jurisdiction to establish a disputed legal right which the parties can as well settle in a court of law, yet, where a right is admitted or established at law, and the parties disagree as to the extent of the right or the mode of using it, equity may interfere to define the right and regulate its use, upon the ground of pre- venting a multiplicity of suits. ((?) § 227. It is a settled principle that where a court has jorop- erly acquired jurisdiction of a cause for one purpose, it will retain it in order to do full and complete justice between the parties — especially if there are incidental matters to be deter- mined, in order to give effect to its decree, (e) so that litigation f//)Crnss V. DeValle, 1 Clill. C. C. (i)<}rigg v. Landis, 21 K J. Eq. 2^'i. 502, and authorities cited. (v)Saine case, I Wall. 15. (O'^Ioorew.Hoisingtoii, :51 Til. 247> (r^jWhite V. R. K. ]:i Midi. 363. (^/)Beam v. Coleman, 44 N. 11. 542. (e)De Beniei- v. Drew, 39 How. Pr. (N. Y.) 471. • 236 EQUITY, may 1)0 terminated as well as the remedy facilitated. (/) And this is so more particularly if the available remedy in equity as to a cause already in the court is more full than could be afforded by a court of law. (.9) § 228. It is, probably, in part upon this principle that the doctrine of equitable conversion rests ; so that if by statute. a charitable corporation can hold a devise of money, but not of land, and a court of equity has cognizance of a will con- taining such devise of land, the court may, in order to effect- uate the purpose of the testator, regard the devise as of money, and not land, and thereupon direct the sale of the land by the executor, and the paying over of the proceeds to the corporation. (/?) For a court of equity is not bound by the literal expressions of a statute, but where a case comes within the equity of the statutory provisions it is held to be within the provisions themselves. (i) § 229. We are net, however, to suppose that there is any absolute discretion vested, in equity, in anything; but pro- ceedings in an equitable court are as fully subject to estab- lished rules as those in a court of law, and the exercise of jurisdiction is so likewise. And, indeed, it has been held that the rules of decision are the same in both tribunals. (J) The leading and fundamental jurisdictional rules or maxims, as I understand, are these three : (1) Equality iS equity. (2) He who would seek equity must do equity. (3) He is first in right who is first in time. As to the second rule, how- ever, it must not be carried so far as to hold a party^ who has committed an error resi^onsible for all the remote and possi- ble consequences that may arise from its leading others to error likewise, through a false confidence in it, without their examination for theinselves.(/t) But, for example, if a grantee in a deed of trust seeks to reform it, and a defense of usury is successfully maintained as to the note which the deed was given to secure, the plaintiff can be required to rebate the usurious interest before relief will be given him.(/) (/)Sand('rs' Appeal, 57 Pa. St. {/)Davis «. Harkncss, 1 Gil. 181. -''(12. (JjMoix'laiid V. Bank, Breese, 26.5. (r/)Conyers "). Brown, .3] Ua. 385. (A:)Peterson »>. Grover, 20 Me. 366. (/i)Harris -o. Slaglit, 46 Barb. 504. (Z)Corley v. Bean, 44 Mo. 381. EQUITY. 237 And so a court of equity will never assist a party to recover an unjust claim. And if a complainant bases his demand upon a hard, oppressive or technical advantage, he must be content with his strict and technical legal rights. (»i) As to the first rule, it does not mean that equity is merely a chancellor's sense of moral right, justice or equality. It must be applied according to established rules. (/;) And Jus- tice Story has remarked that "if by an equity is meant a mere dictate of natural justice, in a general sense, it is not worth while to discuss it, because this court is not called upon to administer a system of mere universal principles. If by an equity is meant a right which a court of equity ought to enforce, it remains to be proved that such an equity exists in the jurisprudence which this court is called upon to admin- ister, "(o) § 230. The remedies in equity are (1) curative, in which particular they agree with remedies at law; and (2) prevent- ive,- in which particular they are entirely distinct and pecu- liar. A brief summary of each class in order will occupy our attention here. And, in the first place, as a court of equity is regarded in the light of a court of good conscience, all matters of trust come specially under its supervision, sometimes exclusively, and sometimes concurrently with courts of probate and other courts. And this supervision extends to implied, as well as express, trusts — that is to say, whether trusts arise from a will or by deed, or operation of law, or by the acts or relations of the parties, they may be enforced in equity; and whether they are established, therefore, by direct proof, or legal pre- sumption. (/>) And a court may remove a delinquent trustee, in order to enforce the execution of a trust; as, for example, a trustee or executor under a will.(r/) And in matters of offi- cial trusts, as, for example, the misapplication of assets by a sheriff, a court of equity will take cognizance of the breach (wl^^tono 1). Pratt, 25 111. 34. (7))Mc(iartney v. Bostwick, 32 N. (//,)Savings lust. v. Makin, 23 Me. Y. 57. .■!(;(;. ((^)Ta.slcy «. Tasley, 1 Dew. 119. ( '^jOret'iic V. Darling, o Ma.sou,2I5. 238 EQUITY. thereof, although the complainant may have a perfect remedy jit law on the official bond of the defendant. (r) But a court is not inclined to establish an implied trust from remote or general circumstances, as, for instance, mere relationsliip. Thus, a bill was brought in a case where a fraudulent concealment of the value of the property was alleged on the part of a son-in-law of the complainant, whereby she parted with her life estate to him at a greatly reduced price. The bill averred that her confidence in the son-in-law, naturally suj)erinduced by the relationship, con- tinued and increased until the day of the sale ; that she reposed entire and implicit confidence in him, believing that he was truly and unselfishly promoting, as he best could, her pecuniary interest; and that he was well aware that she reposed such confidence, and that he knew, before the pur- chase, that the remainder-men had authorized him to oifer her a much higher price than he had paid; and that he had, nevertheless, represented to her that her interest was worth even less than the sum he had paid, by which concealment and misrepresentation she was induced thus to sell to him. The court held, however, that the mere fact of such relationshij) was not sufficient to impose the legal duty of disclosing the value of the property, but, in order to have that effect, it must appear that there was such a trust growing out of the rela- tion as to authorize the complainant to act upon the presump- tion that there had been no concealment of any material fact from her ; and, moreover, that this could not be inferred under the facts of the case, namely, that the parties resided at a remote distance from each other; that, although the social and family relations were cordial, yet the intercourse was only occasional, owing to the distance ; that the son-in-law had not apparently acted as the complainant's business agent or adviser in any way, and had not agreed, in this special instance, to ascertain the value of her life estate, or the price at which it could be sold. It was not enough that the com- plainant actually did place confidence in him, by reason of which she sold to him, when she had not directly informed him (/■)Xortou V. Hixon, 25 111. 452. EQUITY. 239 during the negotiation that she relied upon him, and sold to him in consequence of her confidence in him.(.s) As to a trust deed, the rule is thus laid down by the supreme court of Ehode Island: "The proposition of ihe counsel for the respondents that mere volunteers have no equity on which to ground a claim for equitable relief is quite too broad. If the deed under which they claim be defective, and inoperative at law, they cannot have the aid of a court of equity to complete and perfect it, any more than they can have the aid of the court to enforce a promise, or even cove- nant, without consideration, to execute the deed. In other words, the court will not help them to he cestuis que trust, but remain neutral in regard to the defective deed, or executory contract to give one. On the other hand, if the legal con- veyance be effectually made, the court will protect all equi- table interests, and enforce all equitable rights and duties under it, as promptly and completely, though made without, as if made with, consideration. The party who makes a voluntary deed, whether of real or personal estate, without reserving a power to alter or revoke it, has no ris;ht to disturb it, and as against himself it is binding both in equity and at law.(f) § 231. Closely connected with this is equitable jurisdiction in frauds. And I think that in most of the states even frauds for which an adequate remedy may be had at law are cognizable at equity likewise. However, it is otherwise in New Hamp- shire, under the general fundamental principle that equity will not interfere where courts of law can give full relief. (/<) Never will a court of equity lend its power to assist or protect a fraud. It will not even enforce an unconscionable bargain, as we have before seen. And thus the supreme court of the United States have said: "He who asks relief must have acted in good faith. The equitable powers of this court can never be exerted in behalf of one who has acted (.s)Clpland V. Fish, 43 111. 284. 610. And so in Alabama, (Yonng- (.Justicf Lawrence dissenting.) blood v. Youngblood, i')4 Ala. 4s(i;) (ijSloncr V. Kint;-, 7 R. 1. 3(j.'j. and in Georgia, (Huff v. Itipley, ;5y (w)Miller v. Scaniraon, 52 N. H. Ga. 11. 240 EQUITY. fiauanlently, or T\ho, by deceit, or any unfair means, has gained an advantage. To aid a party in such a case would make this court the abettor of iniquity. "(r) § 232. From this results the power of cancellation and rescission, even to the extent of setting aside formally executed conveyances in fraud of legal or equitable rights. Where there is an adequate remedy at law, even an agreement for the sale of real estate will not be rescinded for sufficient cause shown. Bruner v. Meigs, 74 N. Y. 406. But, misrep- resentation in procuring a bargain will furnish an equitable ground for setting aside a conveyance whereby the bargain was consummated. (zt;) And so, where there has even been a complete execution of the terms of a contract for the purchase of land, by the delivery of a deed and the payment of money, and then the title fails, in part, equity will decree a return of the money, if there had been a fraudulent misrep- resentation of the title. (r) Also, voluntary conveyances, designed to defraud creditors, may be set aside, subject, however, to the general rule that no interference will be granted at the instance of a general cred- itor before judgment. (;/) In Illinois, where a woman, three days before her marriage, sold to her brother, in loco parentis, without the knowledge of her intended husband, and with the avowed purpose of pre- venting him from forbidding such sale, certain premises, at less than one-fourth their value; it was held that the con- veyance should be set aside as in fraud of the husband's mar- ital rights, the same as if it had been purely voluntary. (^) Whether this would be the case under later statutes is per- haps an open question. Where a bidder at a judicial sale of real estate makes false representations which prevent bidding, and thereby obtains the property at a disproportionate price, relief will be given, (r)Bein v. Heath, 6 How. 247, (.r)Idera. approved in Kitchen v. Ravbun, 10 (^)Olierholsen t>. Greenfield. 47 Wall. 263. " Ga. .V.S. (>/-)Allen f). BrattoD, 47 Miss. 130, (j)Freeman v. Hartman, 45 111. 59, and cases cited. and authorities cited. EQUITY. 241 in equity, either by setting aside the proceedings, or holding the purchaser to an account. (a) And so the unfair proceed- ings of an otticer, or purchaser, at a tax sale, will vitiate it, so that chancery will interfere. (/;) Where there was an agreement to exchange real estate, and one party so conducted himself as to induce the belief of the other that he was getting all of a certain number of lots, whereas, after he executed and delivered his deed, he found two of the supposed lots were not included in the exchange, it was held a proper subject for relief by a rescission of the agreement, (c) Moreover, if a purchaser has notice how the vendor consid- ers a sale of other property in the neighborhood as affecting the sale of his. he is held liable if he wilfully takes advan- tage of the delusion, however illogical or absurd it may be. And the materiality of a false representation does not depend ujjon its actual effect upon the value or price, but ujDon its influence on the mind of the contracting party. And so, if a vendor relies upon a representation made by a vendee, or his agent, as to the non-occurrence of a certain event, without any knowledge on his part as to whether it has occurred or not, after being informed by the vendor that, in case of the non-occurrence, he will accept a much lower price, the vendor has a right to have any contract made on such representation rescinded, in case the event has occurred, although the fact misrepresented does not directly afi'ect the value or price of the land.(r/) Whether a strict relation of principal and agent exists or not makes no difference in this matter. And so, where one places himself in a confidential relation to another, as by voluntarily undertaking to assist him in getting his property out of the hands of others, and then takes advantage of the relation to acquire the property through deception or im- proper influence at an inadequate price, equity will relieve, (g) (^/)Cocks V. Iziu-d, 7 Wall. 562. (d)Masterton v. Beers, 6 Kob. (N. (/';)SriUel v. Maxwell, Wall. 277. Y.) 3S;5. (c) Underwood v. West, 43 111. (^^jilarkness «. Frasers, 12 Fla. 404. 337. v.l— 16 2-12 . EQUITY. However, there are well-definecl limitations to the exercise of this jurisdiction of cancelling contracts or instruments; as, for instance, one cannot have a deed set aside because he has not received the consideration merely. Nor can a grantor have his deed annulled and his land restored because the deed was not executed in accordance with the requirements of the law.(/) Nar can a decree of rescission properly be made when both parties cannot be restored to their original .status in reference to the matter, nor if the party seeking (o rescind is himself in default, or has not offered to restore the other party to the condition he occupied before the contract was made. (.9) Neither will a contract be rescinded on the ground of subsequent fraud. And where one sold land to another, who, some years afterwards, forced the seller by vio- lence to give up the unpaid notes for the purchase money, it was held he could not obtain a rescission of the contract of sale.(/i) Nor, if the invalidity of a void instrument appears on the face of it, will equity interfere, although otherwise it will, even if a defence may be made thereon at law, and even if the holder has first begun suit on the instrument. In general it is held, however, that a right to cancellation is not an absolute right of a party, but rests largely in the sound discretion of the court. Sometimes, notwithstanding both parties may be in pari delicto, in an illegal transaction, where the principle of public policy comes in, and sets aside the rule that a party in default cannot apply for a cancella- tion, equity may intervene. So that, in such matters, as, for example, where a note is made void by an illegal consid- eration, the questions occur, (1,) has the complainant made such a case as that, if he were innocent, he would be entitled to relief? and, (2,) if so, does the best interest of society re- quire the granting of relief, notwithstanding the complain- ant's guilt? for, if not, the court will deny the claim, and leave both parties in whatever difficulties their conduct has brought upon them. But the illegal transaction must be execu- (/)lhid- (A)Fultou v. Loltis, 23 JS'. C. 394- (S'jStewart V. Ludwick, 29 Ind.235. EQUITY. 243 tory, and then the public interests must demand its rescis- sion; because it is hehl that, "much as the community is in- terested to discountenance immoral and illegal contracts, its interests will not be subserved by setting aside executed con- tracts and unsettling legal titles. "(^) § 3.3o. Sometimes instruments which are not subject to rescission nevertheless require to be reformed in order to give effect to the intention of the parties thereto; wdien, through mutual mistake, they have imperfectly or improperly drawn the instruments; and this belongs exclusively to equity jurisdic- tion. Thus, a deed conveying the wrong land;(./) even a deed of gift(A) accidentally conveying the house of the grantor, (/) altliough, in such case, it has been held, the grantor's evidence of his intention is insufficient; or a mort- gage misdescribing the land :(//;) or having the grantee's name where the grantor's should be ;(») or a deed omitting the grant of a right of way;(o) or a deed of trust wherein the debt is made payable to the trustee instead of the beneficiary, and misstating the date of the accompanying bond; (7;) or bonds having the penalty omitted ;(r/) or a w^ritten agreement with an excessive consideration which has l)een paid;(r) or a judg- ment wherein is an error of computation in rendering it; (6-) or a printed copy of a will, in the record of a court of ap- jDcals, in which the true will is clianged, and on whi3h judg- • ment is rendered in the court ;(i) or a policy of insurance in which the name of an individual partner is inserted instead of the name of the firm;(M) and such like matters may be re- formed on the proper showing, sustained by clear and satis- factory evidence of the mistake. But, without an allegation and proof of mistake, a party cannot be allowed to prove (*) Porter ■». .Tones, 6 C'Oldw.(Tenn.) (pjBank v. Knssell, ,50 Mo. 532. .'32i>, and autliorities cited. (<7)State ex rel. v. Frank's Adm'r, (j)Parker v. Benjamin, 53 111. 257. 51 Mo. 98. (/:)IIu.ss «. Morris, (J3 Pa. St. 372. (r)Boyce «. Wilson, 32 Md. 125. (^)Mitcliell «. Mitchell, 40 Ga. 16. (.s)Barthell v. Roderick, 34 la. 518. (ffi)Schwickeratli v. Cooksey, 53 (^)Byrne v. Edmonds, 28 Gratt. Mo. 7(). 200. {)i)M\no.r V. Davis, 10 Kan. .547. (;f)Keitli v. Insurance Co. 52 111. (ry)B]akenian v. Blakeman, 39 522. Conn. 325. 2+4 EQUITY. merely tlie intention of one of the parties, or both, in opposi- tion to the plain meaning of a writing, (f) Instruments may be so reformed, however, as to enlarge their terms and so enforce rights not therein expressed, and thus make them conform to the prior oral agreement, as proved by parol evidence, and this is said to rest on the ground that the subsequent omission, by mutual mistake in the attempt to reduce the contract to writing, could not invalidate tke con- tract itself, which, therefore, still subsists, so that the incor- poration of the omitted clause may be compelled. But not if the omitted clause is within the statute of frauds, for then it is not valid until written. Yet, even then, relief may be had against the enforcement of the contract as written, or the assertion of rights acquired under it contrary to the terms and intent of the real agreement between the parties, since it is held that the statute of frauds does not forbid the defeat or restriction of written contracts, nor the use of parol evidence to establish equitable grounds therefor. (?(;) However, part performance will justify the reformation which otherwise would fail. A mistake must be mutual, as a general rule, or if it is the mistake of one party alone it must be caused by the fraudu- lent concealment of the other. (x) And so the correction must, in the absence of fraud, express the understanding of both parties thereto when the contract was executed. (//) But the rule that a mistake must be mutual and prevent the instru- ment from expressing the terms as fully understood by both parties is relaxed, as above intimated, where the party against whom relief is sought has acted in bad faith, and with full knowledge that the instrument did not conform to the inten- tion of the other, or where confidence has been reposed in him and abused; as, if the preparation of the writing was en- trusted to him, during which he either carelessly or wilfully omitted the proper terms, and the other party relied on its correctness, without particular examination and under the (e)Free v. Meikel, 39 Ind. 318. (.r)ODonnell v. Harmon, 3 Daly, («-)Glass V. Hulbert, 102 Mass. 34. (N. Y.) 424. (i?)Harter «. Christoph, 32 Wis. 248. EQUITY. 215 supposition that it embodied the actual agreement. (^) Tliis is upon the general principle that no one shall be allowed to take advantage of his own wrong, and is embraced, also, within the general jurisdiction of equity in cases of fraud. And it is applicable to a policy of insurance as well as to any other contract. (a) It is, also, a general rule that the mistake must be one of fact merely and not of law. So, if it be only a misappre- hension of the legal effect of the terms of the instrument, equity will not interfere. (/>) For if a party actually designs to perform an act, and does so, under a mistaken view of the law affecting it, he is to be held to the obligation resulting from his intention. (c) Equity cannot undertake to supply defects in the knowledge of the law,((i) but must hold parties to have comprehended the legal effect of the instruments they execute on agreement. (e) The rule is thus stated: "Where an instrument is drawn and executed which professes or is in- tended to carry into execution an agreement previously en- tered into, but which, by mistake of the draftsman, either as to fact or to law, does not fulfil that intention, or violates it, equity will correct the mistake so as to produce a con- formity to the instrument. (/) That is, a mistake inlaw will be relieved against, if it be only on the part of the drafts- man, but not if it be in the party. And it must be shown that the instrument misrepresents the intention and agree- ment of the parties. (r/) And so, where there is a mistake, whether of law or of fact, in reducing an agreement to form, or in carrying it into effect, relief may be had; but where parties actually and intentionally adopt it, and then it should fail, through their ignorance of the law, to operate as they intended, the courts cannot substitute another for it.Qi) Yet where there has been actual or legal fraud, a mistake (2)Brioso V Insurance Co. 4 Daly, ((Z)Tliurmond v. Clark, 47 Ga. 502. (N. Y.) 247. (e)Fellows v. Heermans, 4 Lan. (a)Ibid; Bryce «. Insurance Co. (N. Y.) 241. 5.5 N. Y. 242. (/)Hunt v. Adm'rs, 1 Pet. 13. (6) Hoover v. Keilly, 2 Abb. (U. S.) {g)lSelson v. Davis, 40 Ind. 368. 473. (/t) Lanning v. Carpenter, 48 N. Y. (c)Goltra v. Sanasack, 53 111. 457. 413. 24.G EQUITY. of law will be relieved against ; as, if necessary knowledge has been withheld, or an unreasonable advantage has been taken of circumstances under the pressure of which a party has been induced to do what he othei-wise would not have done. The will must not be coerced, (i) In CaHfornia it has been held that a deed made under a mistaken view of the personal rights of the parties may be cancelled, (,/■) and, per consequence, reformed; and this is under the general rule, the question of personal right being one of fact. In order to entitle one to relief on the ground of mistake, he must show that he has used diligence and good faith to avoid the consequences of the mistake, for he cannot be allowed, by delay and omission, to inflict irreparable mis- chief to the other party. (/.-) However, if one of the parties to a deed, executed in good faith, but not conforming really to the previous contract, delays, through an honest and rea- sonable reliance upon the deed, for years after he has had notice that its original construction is denied by the other party, the delay is not chargeable as laches against him.(^) § 234. Closely related to this subject of reformation is that of a specific performance of contracts, wherein there is a very marked difference between the jurisdiction of equity and law ; the latter being unable to compel performance, but only having power to give damages, sometimes wholly inadequate, for breach of contracts, express or implied. And whether equity will enforce the performance of a contract does not depend upon the character of property involved, as whether it is real or personal, but largely upon the inadequacy of a recovery of damages in a legal action. («i) The fixing of a penalty by the contract is accordingly no bar to a suit for specific performance. (n) Yet, if the injured party may, in fact, be fully indemnified in damages, courts are unwilling to decree specific perform- (?)"\Ylieelaa'.s Appeal, 70 Pa. St. (Z)Stockbridge Iron Co. v. Iron 410. Co. 107 Mass. 323. (./Hlearst v. Pujol, 44 Cal. 234. (/«)Duff v. Fisher, 15 Cal. 381. (AjTIiomasD. Bait.;W,48KY.200. (»)Daily?). Litchfield, 10 Mich. 37. EQUITY. 247 ance,(o) on the general principle that equity jurisdiction attaches properly where there is not an adequate remedy at law. The pre-requisities are thus st'ited : "In hills for specific per- formance the contract or assignment must be founded on a valuable or meritorious consideration, and the complainant who seeks the performance must show that he has performed, or offered to perform, all the acts which formed the considera- tion for the alleged undertaking on tlie part of the defendant. And if the contract be vague and uncertain, or the evidence to establish it be insufficient, the party will be left to his legal remedy. iVnd a court will not decree a specific per- formance where the contract is founded in fraud, imposition or mistake, or where it would be unconscientious to enforce it; although, where a contract for the sale of land is unobjection- able, it is as much a matter of course for courts of equity to decree a sj)ecific performance of it, as it is for a court of law to give damages for a breach of it, provided the contract is fair, and for an adequate consideration. "(j^) It is not, however, a matter of course that a specific per- formance will be decreed where a legal contract is shown to exist. It must have been entered into with perfect fairness, and without misapprehension, misrepresentation, or oppres- sion. Nor need an agreement be so tainted with fraud a.^. that it might be cancelled, in order to justify a refusal of a decree for specific performance. (7) Awards are considered so far in the light of contracts as that they may be enforced by a decree for specific perform- ance, (r) If to a bill brought to enforce a specific performance the defence is set up that there is a mistake in the contract, the contract may be reformed, and then a decree be rendered. (.s) Unless in exceptional cases, wherein it may be needful to protect an innocent purchaser against fraud, a contract will not be divided, but enforced entire. (f) (o)McCliine v. White, 10 Min. 1!)2. (r)Ballaiice v. L'ndcrhill, 3 Scam. (7?)Fitzpatrick v. Beatty, 1 Gil. 453. 467, and authorities cited. (.s)lbid. (g)Fritihyv. Ballauce,4 ttcam. 299. (i)lStune v. Trait, 25 111. 25. 248 EQUITY. § 235. The removal of a cloud upon title to lands is a branch of equity jurisdiction. A cloud ujjon title is thus delined by the California court : "If the title against which relief is prayed be of such a character as that, if asserted by action, and put in evidence, it would drive the other party to a production of his own title in order to establish a defence, it constitutes a title which the latter has a right to call upon the coui-t to remove and dissipate. If, on the other hand, the title be void on its face, if it be a nullity, a mere felo de se, when produced, so that an action based upon it will 'fall of its own weight,' as has been said, then the title of the party plaintiff is not necessarily clouded thereby, and he ought, if he would maintain an action to have it removed, show some special circumstances which entitle him, in the view of a court of equity, to a decree for that purpose." (u) But the complain- ant must be in possession, even if not in actual occupation ; for if out of possession he has an adequate remedy in eject- ment ;(i;) and a court of equity has no jurisdiction to restore possession, except where such restoration is merely inciden- tal to the main purpose of a bill, the power of the court being invoked on some ground within the legitimate jurisdiction, (?t') and this, therefore, falling under the general principle that when a court of equity has acquired jurisdiction of a cause for one purpose, it will retain the cause in order to do full justice between the parties, especially in effectuating its own decrees. § 236. Matters of partnership come appropriately within the province of equity, unless there has been a balance struck between the partners, or an express promise exists. (a;) And, in New Jersey, an heir may bring a suit in equity for his dis- tributive share, (i/) § 237. Equity seems to possess concurrent jurisdiction in suretyship in most of the states, and exclusive jurisdiction in some of them.(^) § 238. In most of the states, I believe, by statute, equity {u)Liek V. Ray, 43 Oal. 88. (a!)Buell v. Cole, 54 Barb. 366. (o)Burton v. Gleason, 56 Til. 25 ; (?/)Dorsheimer v. Rorback, 23 X. Gage V. Rohrback, Ibid, 263. J. Eq. 47. (wjGrenn v. Spring, 43 111. 280. (2)Heatli «. Bank, 44 N. H. 175. EQUITY. 249 lias power to issue ne exeat writs, which, however, are likely to become obsolete. § 239, Bills of discovery are becoming almost wholly super- seded by the statutes removing the disqualification of parties in interest to testify in actions at law, which statutes will doubtless soon be universall}' enacted, inasmuch as they de- stro}' a transparent legal absurdity, though hoary with age. § 240. We come now to the preventive jurisdiction of courts of equity. And this of late chiefly lies in the power to en- join, which has almost superseded bills of peace. But, in South Carolina, if a surety apprehends danger from delay he can apply to equity to compel the debtor to pay the debt past due, although the surety has not been sued nor paid the debt. Norton v. Eeid, 11 S. C. 593. These, also, may still have other applications, as in matters of disputed bounda- ries, wherein a court may "direct that a disputed boundary be surveyed and marked in a permanent manner, thus putting forever at rest a subject of chronic contention. "(rtj Almost every abuse and oppression may be reached by in- junction, provided there is no adequate remedy at law, for in this case an injunction will always be refused. Thus the prosecution of a multiplicity of suits may be enjoined; (6) or encumbering or conveying lands wrongfully ;(c) or the wrong- ful use of a judgment improperly and fraudulently ob- tained ;(fZ) or a nuisance ;(e) or infringement of an exclusive trade-mark ;(/) or any irreparable damage ;(f/) with this ex- ception, however, that courts will not interfere to restrain the commission of an ordinary trespass m3rely on the ground that the defendant is not j^ecuniarily able to pay damages that might be recovered against him.(//.) The insolvency of a party is a consideration only in waste or matters tending to perma- nent and irreparable injury to the estate. (i) (For enjoining (^f)Primm «. liuboteau, 56 Mo. (/jHradk'v ». Norton, ll)id, 165. 41(). (^)Buriiliain «. Kenipton, 44 N. (i)Uailroad v. Mayor, etc., 54 N. 11. 02; R. K. v. R. R. 57 N. H. Y. 15!). 2U0. (cjHo.xie V. Price, .31 Wis. 89. (/<). Morgan v. Palmer, 4S N. H. (d)Gainty v. Russell, 4U Conn. 451. 33^. (e)Bishop v. Banks, 33 Conn. 118. (/)lbid. 250 EQUITY. judgments see "Res Adjudicata.") It may be merely re- marked here that equity will not enjoin a judgment for mere irregularity. Bowden v. Perdue, 59 Ala. 409. Nor on this ground review the action of municipal corporations, as, for instance, in the matter of street assessments. Guest v. Brooklyn, 69 N. Y. 500, There must be a specific equity to justify interference herein. Jersey City v. Lemheck, 31 N. J. Eq. 255. Even persons claiming exemptions from assess- ment must ap2)ly to a court of law. Improvement Co. v. Ho- hokcii, Id. 461. And if one has lost his legal remedy, by laches, as to such assessment, he cannot be relieved in equity^ Cleveland v. Road Board, Id. 473. ADMIRALTY. 251 CHAPTER III. ADMIRALTY, § 241. Admiralty jurisdiction explained. 242. Distinction between admiralty and common law. 243. Extension of jurisdiction. 244. How jurisdiction exercised. 245. VVlien jurisdiction attaches. 246. Efl'ect of state statutes. 247. Seamen's wages. 24.S. Conjoint proceeding in personam and in rem. 24!). Ousting jurisdiction by mixed contract. 250. Vessel partnership. 251. Titles to ships — mortgages. 252. Contracts for building ships — repairs. 253. Furnishing supplies. 254. Maritime liens — maritime contracts. 255. Insurance, etc. 256. Salvage. 257. Supervision of seamen's contracts. 25S. Contracts of transportation. 25!t. Lien by advancing money to release vessel seized by marslial. 260. When suit may be brought where a promissory note has beea given. 261. Distinction between vessel and cargo. 262. Collision. 263. Torts. 264. Violations of revenue laws. 265. Felonies. 266. Pirates. 267. Admiralty jurisdiction as to foreigners. 268. Prize jurisdiction. 269. Repairs or supplies as to foreign ships. 270. Trusts — specific performance. § 241. This form of jurisdiction was confined to the United States courts in general, for the ohvious reason that, in large measure, it is of necessity international, involving the inter- ests of foreigners and their rights upon the high seas ; although 252 ADMIKALTY. it sometimes runs concurrently with the jurisdiction of state courts. Ml-. Story, in his work on the Constitution, speaks of the confusion which exists, in many particulars, regarding this jurisdiction ; and also sums up, succinctly, the subjects to which it attaches, thus: "It has been remarked by the Federalist, in another place, that the jurisdiction of the court of admiralty, as v^ell as of other courts, is a source of frequent and intricate discussions, sufficiently denoting the indetermi- nate limits b}' which it is circumscribed. This remark is equally true in respect to England and America; to the high court of admiralty sitting in the parent country, and to the vice-admiralty court sitting in the colonies. At different periods the jurisdiction has been exercised to a ver}' different extent, and in the colonial courts it seems to have had bound- aries different from those prescribed to it in England. It has been exercised to a larger extent in Ireland than in Eng- land, and down to this very day it has a most comprehensive reach in Scotland. The jurisdiction claimed by the ceurts of admiralty as properly belonging to them extends to all acts and torts done upon the high seas, and within the ebb and flow of the sea ; and to all maritime contracts — that is, to all contracts touching trade, navigation or business upon the sea, or the waters of the sea, within the ebb and flow of the tide. ***** rjj^^ admiralty and maritime juris- diction (and the word 'maritime' was doubtless added to guard against any narrow interpretation of the preceding word 'admiralty') conferred by the constitution embraces two great classes of cases ; one dependent upon locality, and the other upon the nature of the contract. The first respects acts or injuries clone upon the high seas, where all nations claim a common right and common jurisdiction ; or acts or injuries done upon the coast of the sea, or, at furthest, acts and injuries done wirhia the ebb and tlow of the tide. The second respects contracts, claims, and services purely mari- time, and touching rights and duties appertaining to com- merce and navigation. The former is again divisible into two great branches— one embracing captures and questions of ADMIRALTY. 253 prize arising ;?/7Y belli; the other embracing acts, torts and injuries strictly of civil cognizance, independent of lielligerent operations, (a) ****** "The branch of jiirisdictipn dependent upon locality re- spects civil acts, torts and injuries done on the sea, or (in certain cases) on waters of the sea where the tide ebbs and flows, without any claim of exercising the rights of war. Such are cases of assaults, and other j^ersonal injuries; cases of col- lision, or running of ships against each otlier; cases of spo- liation and damage, (as they are technically called,) such as illegal seizures or depredations upon property ; cases of illegal dispossession, or withholding possession from the owners of ships, commonly called possessory suits; cases of seizure, under municipal authority, for supposed breaches of revenue or other prohibitor}' laws, and cases of salvage for meritorious services performed in saving property, whether derelict, or wrecked, or captured, or otherwise in imminent hazard from extraordinary perils, (/j) ****** "The remaining class respects contracts, claims and serv- ices purely maritime. Among these are the claims of mate- rial-men and others for repairs and outfits of ships belonging to foreign nations or to other states ; bottomry bonds for moneys lent to ships in foreign ports to relieve their distresses and enal)le them to complete their voyages; surveys of vessels damaged by perils of the seas, pilotage on the high seas, and suits for mariners' wages. (c) * * * * * "We have thus far been considering the admiralty and maritime jurisdiction in civil cases only. But it also em- braces all public offences committed on the high seas, and in creek, havens, basins and bays within the ebb and flow of the tide ; at least, such as are out of the body of any county of a state. In these places the jurisdiction of the courts 'of admiralty over offences is exclusive ; for that of the courts of common law is limited to such offences as are committed within the body of some county. And on the sea coast there is an alternate or divided jurisdiction of the courts of admiralty { through two or more states, cannot in any manner affect the character of the transaction. (/>) But it is different where vessels are exclusively engaged in the internal commerce of a state, (^j-) Where the larger part of a voyage is upon waters subject to admiralty jurisdiction, that jurisdiction is not ousted by the fact that the termination is upon water of a different character, as a canal. (/•) § 244. Admiralty jurisdiction is exercised in two modes — in rem and in personam; the former being applicable espe- cially where a lien exists or a capture is made. It has been held, indeed, that it is a distinguishing and characteristic feature of a suit in admiralty, that the vessel or thing proceeded against is itself seized and impleaded as the defendant, and is judged and sentenced accordingly; whereas, by the common law process, propert}^ is reached only through a personal defendant, and only to the extent of his title, so that the title of a purchaser can never be better than that possessed by the personal defendant. (s) In order, however, that the jurisdiction in rem shall attach for any purpose, there must be an actual seizure and posses- sion by the marshal. "In admiralty, all parties who have an interest in the subject of the suit, the res, may appear, and each may propound, independently, his interest. The seiz- ure of the res, and the publication of the monition, or in- vitation to appear, is regarded as equivalent to the particular service of process in the courts of law and equity. But the res is in no other sense than this the representative of the (j9)The Daniel Ball, 10 Wall. 565. (r)The Robert Morris, 1 VYtill. Jr. (g)Tlie Montauk, 47 111. 335. 33. (s)Tlie Moses Taylor, 4 Wall. 427. V. 1—17 2-, 3 ADMIRALTY. whole world. But it follows that to give jurisdiction in rem there must have been a valid seizure, and an actual control of the ship by the marshal of the court;" and hence, where a sheriff has a prior levy on it by process from a state court, there can be no jurisdiction. But in the case in which this was decided four of the judges dissented from the latter point — the suit being for seamen's wages — and held that this is en- titled to priority over all others, and that state courts have no right to obstruct the United States courts in their legitimate sphere; and they lay down, as indisputable, the following principles: "The lien of seamen for their wages is prior and paramount to all other claims on the vessel, and must first be paid. By the constitution and laws of the United States the only court that has jurisdiction over this lien, or authority to enforce it, is the court of admiralty; and it is the duty of that court to do so. The seamen, as a matter of right, are entitled to the process of the court to enforce the payment promptly, in order that they may not be left penniless, and without the means of support on shore ; and the right to this remedy is as well and firmly established as the right to the paramount lien. No court of common law can enforce or dis- place this lien. It has no jurisdiction over it, nor any right to obstruct or interfere with the lien, or the remedy which is given the seaman. A general creditor of the ship-owner has no lien on the vessel, and when she is attached (as in this case) by process from a court of common law, nothing is taken, or can be taken, but the interest of the owner remain- ing after the maritime liens are satisfied. The seizure does not reach them; the thing taken is not the whole interest in the ship; and the only interest which this i^rocess can seize is a secondary and subordinate interest, subject to the superior and paramount claims for seamen's wages; and what will be the amount of those claims, or whether anything would re- main to be attached, the court of common law cannot know until they are heard and decided upon in the coui't of admi- ralty, "(t) (t)T&j\or V. Carry], 20 Hew. 591. A1>M1KAI/1'Y. 25 1> I believe this ease has never been overruled ; but it does certainly seem that the dissenting judges had by far the greater weight of reason with them. § 24:5. In order to confer a jurisdiction in rem it is not necessary that the ship actually enter upon the performance of a maritime contract, or that the breach occur during a voy- age. The obligation results not from the performance, but from the contract itself, and the contract binds the ship in specie whenever made ; so that, if there is a refusal to take on board a cargo or passenger to be conveyed, there is a lien upon the vessel itself, and the party aggrieved is not remitted to an action in personam against the master or owner.(M) It is different in contracts which do not create a lien until per- formance; as, for example, for repairs or supplies. If a master refuse to allow the repairs or receive the supplies the action is in personam. (r^) § 246. i'roceedings in rem, and in the name of the vessel itself, have been made exclusive in the United States courts by act of congress, so that a stiitute of California, conferring such jurisdiction upon the state courts, was declared inoper- ative, although it might have been otherwise in the absence of the congressional act.(^f) And so it has been held that a state law cannot give a lien to be enforced against a vessel by a proceeding in rem, even to a resident of the home port, and against a vessel whose owners reside in the same port, if the vessel plies between the home port and a port of another state ;(^) although, in any case, an action in per- sonam may be brought against the owners of such a vessel for negligence in transportation. (?/) For a breach of a contract to carry a passenger from one state to another the remedy is a proceeding in rem in admi- ralty. (?) Yet, when a claim for labor, or for supplies, in fitting out a (tt)Tlio Pacific, 1 Bhitchf. oHti. (:7;)Marshall v. Curtis, 5 Busli, (f))Ibid, 587. (Ky.) ti09. /7r)Tlio Moses Taylor, 4 Wall. 411. (y)Rake v. Steamboat Owners, 6 Sec Ftjrrau v. Hasfonl. 54 Barb. 208. Busli, 26. (s)bteamboat «. Loug, 18 O. St. 52S. 200 ADMIRALTY. vessel is presented, courts of admiralty enforce a lien pro- vided therefor by the local law of the state where the con- tract was made ; but if there be no lien by local law they will refuse the remedy, (a) Nor wOl they retain a suit in rem for the purpose of foreclosing a mortgage. (6) In a libel in rem, for supplies furnished, the claimant is bound to show that the credit was not given to the owners but to the vessel, or the suit will not be entertained, (c) § 247. A seaman's claim for wages will be enforced in admiralty both in jjersonam and in rem.[d) And also an action for tort will be entertained both in rem and in perso- nam, (e) As to repairs, a claim for them can only be enforced in rem where the workman has not parted with the possession of the vessel. (/) And, on the other hand, ship-owners cannot bring suit in admiralty in personam, or in any way, against a ship- wright for damages committed in the construction of the ves- sel, the contract between them not being regarded as mari- time, (^) as we shall notice still further hereafter. § 248. In general, whenever a proceeding conjointly in personam and in rem is available, it is encouraged ; since it "avoids multiplicity of suits, and saves needless repetitions of proofs and discussions. " (/i) § 249. In matters of contract it is held that adjudication must not be partipJ but entire, and if there be any portion of the subject-matter of a suit which is not cognizable in an admiralty court, it will oust the jurisdiction altogether. Tlie principle is thus stated: "If the contract of the appellee had been the ordinary one for repairs or supplies to a domestic ship, and the only matter in dispute was to whom the credit was given and who was liable for the amount, it is very clear that it would be a case for admiralty jurisdiction, and the (a)The Infanta, 1 Abb. Adm. 263. (/)Cunningliam p. Hall, 1 Clirt. (6)Tlie .John Jay, 3 Cliff. 67. 48. (c)The Prospect, Ibid, 527. (<7)Ibid, p. 46. ((Z)Sheppard«.Tayloi-, 5Pet. 710. (/i)The Sloop Merchant,! Abb. (e)Manroe «. Almeida, 10 Wheat. Adui. 7. 486. ADMIRALTY. 261 'Court would undoubtedly be authorized to determine whether Turner or the anticipated and contingent partners would be liable to the libellant for the money; and this question, upon the testimony, could be easily disposed of. But, inseparably connected with this maritime contract, and forming a part of it, is the agreement to become a partner in a comj^any to be formed to purchase the vessel. Now, a contract to form a partnership to purchase a vessel, or to purchase anything else, is certainly not maritime; a court of admiralty has no right to decide whether such a contract was legally or equitably binding, nor to adjust the accounts and liabilities of the dif- ferent partners. These questions are altogether outside of the jurisdiction of the court, and yet the amount actually due to the libellant, by whomsoever it is to be paid, cannot be decided until these questions are first examined and determined. And r consider it to be a clear rule of admiralty jurisdiction that, although the contract which the party seeks to enforce is maritime, yet. if he has connected it inseparably with anotlier contract over which the court has no jurisdiction, and they are so blended together that the court cannot decide one with jus- tice to both parties without disjjosing of the other, the party must i-esort to a court of law or a court of equity, as the case may require, and the admiralty court cannot take jurisdiction of the controversy. The case of Grant v. Po'iUon was decided upon this ground at the last term of the supreme court. 20 How. 162. "If the contract for repairs, and for the partnership, had been separate contracts, there would be no doubt of the juris- diction ; and so, also, if the partnership had related to some collateral matter. But, according to the testimony, the agree- ment to repair the boat and to become part owner of her, with the libellant and others, were but parts of one and the same contract, and in relation to one and the same thing — that is, the boat to be repaired; and this court cannot adjust the rights and liabilities of the parties upon one portion of the contract, and leave the other to be litigated in another court. If it lias not jurisdiction over the whole contract, it could not, without great injustice, disjjose of a part, and compel the 2(52 ADMIRALTY. piiity to pay money on one portion of it, and leave it to aiiotlior court to decide whether he had not claims against the lil)ellant, upon the partnership branch of it, which ought to have been adjusted before the account for work on the vessel was paid. * * * * I have said nothing of the proceedings in the state court of equity, to which the appel- laut refers in his answer. They have not been filed in the case, and this court cannot, therefore, regard them as open to consideration here. Certainly, if the same question between the same parties, upon the same subject-matter, were pend- ing in a state court of competent jurisdiction to decide upon all the rights in controversy, this court would refuse to enter- tain a suit upon any portion of the matters so in litigation in the state court. "(i) ;j 250. In the above extract it is declared that a vessel [)aitnership is not a subject of admiralty jurisdiction, where the matter of partnership is the owning of the vessel. The principle, likewise, extends to the operations of a vessel; as, for example, if parties make an agreement to share profits in a certain ratio, one contributing the vessel, and the other his skill and attention, this is held to be no maritime contract of which admiralty could take cognizance. (J) On the same principle, admiralty cannot adjudicate ques- tious of property between the mortgagee of a vessel and one who has purchased under a mortgage given by a majority of the owners, and has been ejected by the others, who did not join. (A) However, this, also, goes on the principle that mortgages are not subjects of admiralty, as we shall see here- after. As a consequence of partnership matters not being sub- jects of admiralty jurisdiction, the courts will not adjudge an accounting between part owners ;(f) that is to say, where the accounting is the principal thing; for if it be incidental merely, it will not oust the jurisdiction: the rule being that (^Turner v. Beacham, Tany, Steamer Petrel u. Dumont, "iS Ohio 5*^7. St. 602. (7) Ward «. Thompson, 22 How. {Z)Morgan w. Tapscott, 6Ben. 2;V2. 334. And so as to the Ohio river. (i)Steamboat v. Phcebus, 182. ADMIRALTY. 263 if a court has proper cognizance of a principal thing, it has also of the incident, although the incident would not, of itself, and standing alone, be within the jurisdiction. (?«.) It makes no difference that the claim of a part owner arises on the water. So, even where a part owner dissents from a voyage, he cannot, in admiralty, sue for the use or destruction of his share of the outfits during the voyage. (w) The general principle is thus stated: "When it is said that the admiralty has no jurisdiction in matters of account, I understand the meaning to be — First, if the settlement of the account is the sole object of the suit, it is clear that the court has not jurisdiction, although it might have over each partic- ular item. Second, when it is not the sole object, if it is apparent, from the pleadings, that it is one j)rincipal object, though not the sole one, and the accounts are long, and intri- cate, and multifarious, the court will decline to take jurisdic- tion. It will not, as observed by Lord Stowell, allow its jurisdiction to be used as a peg to hang a case upon which properly belongs to another forum. When the account arises incidentally, it has been pointedly said that the court holds itself bound to move within restricted limits. But it is very clear that the jurisdiction is not excluded by the simple fact of there being cross-demands. In all cases where there are such incidentally arising in a case, it is a question addressed to the sound discretion of the court whether it will take cog- nizance of the ease or not, and to be determined by the gen- eral principles before stated. "(o) Under this it has been held that, as a court of admiralty has jurisdiction to decree a fishing bounty to persons engaged in the cod-fishery, it may incidentally act upon a claim for an account of the fish taken. ( p) , § 251. The matter of title to ships has undergone a revo- lution in England. Formerly, the courts of admiralty en- tertained, without scruple, a jurisdiction in cases of title, as well as possession ; but, of late, they will only entertain ques- (TO)Davison v. Sciil-skins, 2 Paine, (o)The Larch, 3 Ware, 34. 333. (p)Thii Lucy Anne, 3 Ware, 253. (»)The Marengo, 1 Low. 53. 204 ADMIRALTY. tions of title where they are merely incidental, and not com- plicated in their nature. But the former rule is held to be the true one in the United States. (5) And suits for title are called petitory suits. No jurisdiction has ever been exercised, in either country, to foreclose a mortgage ; and the United States supreme court say : "It has been repeatedly decided in the admiralty and common law courts in England that the former have no juris- diction in questions of property between a mortgagee and the owner. No such jurisdiction has ever been exercised in the United States. No case can be found in either country where it has been done. In the case of The Neptune, 3 Hagg. Adm. E. 132, Sir John Nicholl, in giving his judgment, observes: ' Now, upon questions of mortgage, the court has no jurisdic- tion, whether a mortgage is foreclosed; whether a mortgagee has aright to take possession of a chattel personal; whether he is the legal or only the equitable owner ; and whether a right of redemption means that a mortgagee is restrained from sell- ing in repayment of his debt till after the time specified is passed. The decision of these questions belongs to other courts ; they are not within the jurisdiction or province of the courts of admiralty, which never decide questions of property between the mortgagee and owner.' This is not so [merelj^] because such a jurisdiction had been denied by the jealousy of tlie courts of the common law. Its foundation is that the mere mortgage of a ship, other than that of an hypothecated bottomry, is a contract without any of the characteristics or attendants of a maritime loan, and is entered into by the parties to it without reference to navigation or perils of the sea. It is a security to make the performance of the mort- gagor's undertaking more certain, and, whilst he continues in possession of the ship, disconnecting the mortgagee from all agency and interest in the employment and navigation of her, and from all responsibility for contracts made on her ac- count. Such a mortgage has nothing in it analogous to those contracts which are the subjects of admiralty jurisdiction. {7)Thc' Schooner Tillon, 5 Mason, 472; Taylor v. lioyal Saxon, 1 Wall. Jr. "23. ADMIKALTY. 2G5 In such a case the ship is the object for the accomplishment of the contract, without any reference to the use of her for such a purpose. There cannot be, then, anything maritime in it. A faikire to perform such a contract cannot make it maritime. A debt secured by the mortgage of a ship does not give the ownership of it to the mortgagee. He may use the legal title to make the ship available for its payment. A legal title passes conditionally to the mortgagee. Where there has been a failure to pay he cannot take the ship manitforti, but he must resort either to a court of equity or to statutory rem- edies for the same purpose, when they exist, to bar the mort- gagor's right of a redemption by a foreclosure, which is to operate at such time afterwards when there shall be a fore- closure without a sale, as the circumstances of the case may make it equitable to allow. ***** Courts of ad- miralty have always taken the same view of a mortgage of a ship and of the remedies for the enforcement of them that courts of chancery have done of such a mortgage and of any other mortgaged chattel. But from the organization of the former and its modes of proceeding they cannot secure to the parties to such a mortgage the remedies and protection which they have in a court of chancery. They have, therefore, never taken jurisdiction of such a contract to enforce its pay- ment, or by a possessory action to try the title, or a right to the possession of a ship. It is true that tlie policy of com- merce and its exigencies in England have given to its admi- ralty courts a more ample jurisdiction in respect to mort- gages of ships than they had under its former rule, as that has been given in tliis opinion. But this enlarged cognizance of mortgages of ships has been given there by statutes 3 and 4 Vic. c. 0.5. Until that shall be done in the United States, by congress, the rule in this particular must continue in the admiralty courts of the United States as it has been."(r) The distinction appears in part to be this : that a court of admiralty can only pass on legal titles, and not on equita- ble, (s) (?-)Bogart V. Steaiiihoat, ]7 How. (.vjThe William D. Rice, 3 Wail, 401 ; Morgan w.Tapscott, 5 Ben. 252. 137. 2(16 ADMIRALTY. § 252. A contract to build a ship is not regarded as a maritime contract, and is, therefore, not cognizable in admi- riiltv. And the ground of this is that it is a contract made on hiiul. and to be performed on hind.(0 And the principle, as a matter of course, extends to furnishing materials for the purpose of building, or fitting out the construction of a ship:(») and it is not changed by the locality of the construc- iion. applying where the building is on the shore of tide-water^ and intended for ocean navigation. (f) In consequence, the state legislatures may create such liens as they deem just and expedient, provided they do not amount to regulations of commerce :(w) and the state courts have full power to enforce such lien. (a-) However, repairs of a vessel fitting it for the navigation of the sea are recognized as maritime in their nature ;(/y) the basis for which distinction seems to be that mere repairs are made on the water; and so, if they are so extensive as to require the vessel to be drawn out of the water into a ship- yard, the matter passes under the same rule as the building, or furnishing materials or equipments. (^) But the distinc- tion between repairs made on the water and those on ship- ways is formally rejiudiated by Justice Nelson, and both are made to be maritime contracts, provided it is the ship-master who owns the yard, and is employed to make the repairs ; this being then regarded as part of the work of the ship-master, whereas it is different if the yard is owned by another, and hired for the j)urpose of repairs. But these distinctions look to me hopelessly confused. (a) A contract to furnish materials to repair a vessel is not a maritime contract. (6) § 253. But an actual furnishing of supplies is, except in a («)Ferry Co. v. Beers, 4 How. 302. (^)Reppert v. Kobinson, Taney, (w)I.oroy V. Latham, 22 How. 132. 497. (c)Yoiing V. Ship, 2 Clitf. 38. (2)Hansom v. Mayo, 3 Blatch. 70. (w)Ed\vardsv.Elliott,21Wall. 552. (fl)Wortman v. Griffith, 3 Blatch. (.r)Sinton v. Steamboat, 4G Ind. 529. 47tj; Thorsen v. Schooner, 26 Wis. (J)AA'erill».Stearaboat, 20 La. An. 496 ; Mitchell v. Steamboat, 45 Mo. 432 ; Hogan v. Steamboat, 40 Mo. 67- 265. ADMIRALTY. 267 home port ; (c) or for a voyage between two ports of the same state ; (d) or where the furnisher is also a co-owner, (e) Yet a refusal to receive supplies is not a matter of cogni- zance in admiralty, (/) which is upon the principle that an executory contract is not actionable on breach in the court of admiralty, ((/) but only ui a court of common law.(/i) § 254. A lien is created by maritime services rendered, which may be enforced by a proceeding in rem. But prelimi- nary contracts leading to maritime contracts, of whatever sort, are not cognizable in admiralty ; as, for example, a preliminary agreement to execute a charter-party for a voy- age ;(t) a principle stated above as to all executory contracts. And where a maritime lien exists, the authority to enforce it in rem is exclusive in the United States courts. (/) To give a maritime character to services rendered on or in a vessel, they must be connected with the betterment or reparation of the vessel, or else in actual navigation, or else supplies for or relief to those conducting navigation. (/i) Hence, where one is employed to visit a vessel in port, venti- late it, keep the pumps in order, etc., he cannot sue in ad- miralty for the compensation. Bui: if, in the course of such employment, a necessity arises that he shall navigate the vessel from one anchorage to another, he may recover for such removal ;(/) and, as to seamen's wages, they may be re- covered in rem against a vessel plying on navigable waters, although the waters are entirely within the jurisdiction of one state ;(»() and where one claims wages as master, he may enforce the claim in rem, even if he be also a i^art owner — the two relations being separable. («) The matter of pilotage is a kind of floating jurisdiction, it (c)Boy'.an «. Hteuniboiit, 40 Mo. 252. (<)Tlio Schooner Tribune, 3 Sumn. (d)Maguire v. (Jard, 21 How. 250, 147. (Wayne, ,J. , dissenting.) (i)Tlu! Belfast, 7 Wall. (J43. (e)H:ill V. Hud.son, 2 Sprague, 65. (A-)Gurney ». Crockett, 1 Abb. (/) The Cabarga, :5 Blatch. 76. Adni. 4!t2. ifj)Cox V. Murray, 1 Abb. Adm. (?)lbid. 341. (m)The Sarah Jane, 1 Lowell, 203, (^.)The Pauline, 1 Biss. 390. and cases cited. (ft)Dextcr t). Monroe, 2 Sprague, 40. 208 ADMIRALTY. being held that, so far as congress has legislated upon it, the authority of the national courts is supreme and conclusive ; wliile, further than this, the matter is under state regulation. (o) But the admiralty courts may enforce the rights given by state law, on the principle that a party forfeits nothing by going into a United States tribunal.(j9) And that, too, even in cases where the state law has given a lien to a pilot, in certain cases, whose services have been tendered and ref ased,(r7) as where half-pilotage is allowed to him who first tenders his services to a vessel. (r) And this even extends to a canal-boat in the harbor of New York.(s) And a state cannot change the character of maritime con- tract by legislation, for this would be to limit admiralty jurisdiction itself. (f) Inasmuch as wharfage is not appurtenant to any other business than commerce, and as it is essential to this, a con- tract relating to wharfcige is regarded as a maritime contract; and 'even with regard to a canal-boat in navigable waters, (m) However, a claim for wharfage against a domestic vessel is not cognizable in admiralty, and the state courts have the jurisdiction, (t") The cost of advertising a vessel for sea, portage, commis- sions for procuring freight, wages of stevedores or lightermen, services in compressing cotton into smaller bulk to be loaded as cargo, are all excluded from admiralty jurisdiction as not being maritime services; and so with disbursements and advances by the agent of a charterer of a ship.(/r) A mari- time character only attaches when the matter done, or begun to be done, regards the fitting out of the vessel itself for a (o)The Lottawanna, 21 Wall. .i81, Ben. 62. And so, claims for wliarf- {ClLfford, J., dissenting.) age are enforceable, in admiralty, (p) Ex parte ^IcSie], 13 Wall. 243. whether arising on an express or (<7)The Brig America, 1 Low. implied contract. Easton ex parte, 176. 5 Otto, GS. (r)Banta v. McXeill, 5 Ben. 74. (?!)City of JefEersonville v. B'erry- (8)Tlie Canal-boat Walsh, Ibid, 72. boat, 35 Ind. 19. {t)The Bark Ala.ska, 3 Ben. 392. (w)The Bark Cunard, Alcott, (w)The Canal-boat Treniaine, 5 121. ADMIRALTY. ' 269 voyage, aid and assistance on board in prosecuting the voy- age, or employing the vessel as a vehicle. (a;) § 255. Insurance, and respondentia and bottomry loans are regarded as maritime contracts, although they are made on the land and to be performed on the hmd, because they relate to maritime risks. (//) § 250. Salvage is a subject of admiralty, and consists of services rendered in saving a vessel in distress l)y one not an owner. And one who holds a mortgage not yet due is not regarded as an owner, and is, therefore, entitled to compen- sation for salvage services ;(r) and such claim takes prece- dence of all })rior maritime liens. (ff) And it is immaterial whether the services are performed at the request of the owners or by persons accidentally fall- ing in with the wreck; and if there are different sets of sal- vors, at different times, rendering service to a vessel in con- tinuous peril, each is entitled to compensation, although the separate service of each would alone have saved the vessel. (/;) And so where a dismasted bark, rudderless and without an anchor, was taken by a schooner to a safer position, and left there, and then the schooner arriving at port gave intelligence of the condition of the bark, whereby another vessel went out and saved the bark, it was held that the schooner was enti- tled to compensation. (c) But it is an essential prerequisite that the vessel 1)e actually saved from ])eril, either from ship- wreck, derelict or capture, as the case may he.(d) However, it is not necessary that the distress should be actual or imme- diate, or tliat the danger should be imminent or absolute. It is sufficient if, at the time when the service is rendered, the vessel has encountered any damage or misfortune which may possibly expose her to destruction if the service be not ren- dered, (c) In order to encourage the rendering of assistance, courts are liberal in compensating services of the kind, usually (,f)Cox '/>..Miirr:iy,l Abb, Adm.:j4U. ('^)Ihid. (.y)Iiisui"infc Co. ». Dunham, 11 (//)Ad:uiis t). Bark, 1 Cliff. 214. Wall. :iO; Younger v. Ins. Co. 1 (^jNorrLs »>. Bark, 1 Cliff. 220. Sprague, 243. (d)]]n(\. (z)The Barney Eaton, 1 Biss. 240. («-)Tlie Saragossa, 1 Ben. 551. 270 ADMIRALTY. awarding from one-third to one-half, and giving extra com- pensation to a passenger of the rescuing vessel who has exerted himself in an extraordinary manner, and effect- ively. (.M Passengers on hoard the vessel relieved are, however, not entitled; but with a regiment of soldiers being transported under a contract with the government, the rule is different ;(f/) as, for example, where they keep a ship from sinking by bail- ing out the water admitted through a leak.(/t) Salvors may mak-e a special contract before rendering serv- ices, and the conrts of admiralty will enforce it, provided they have not taken advantage of the calamities of others to drive an unreasonable bargain. Where this is the case the courts will withhold the remedy. (h In order, however, to bar a salvage claim, there must be a contract for a given amount, or a binding engagement to pay, at all events, whether successful or unsuccessful in the effort. (,/) Where a vessel is found derelict — that is, abandoned — and taken possession of, and brought into a place of safety, the rescuer is entitled to salvage on returning it to its owners. But where a bark was in tow of a steamer, and was anchored, and left for a needful temporary purpose, (the ofiirers and crew being on board the steamer,) but nothing having been taken out of the bark, and the departure being with intent to return as soon as possible and take the bark into a place of safety, and in the absence of the steamer the bark was found by another vessel, it was held the bark was not derelict. (A) A vessel is not derelict until wholly abandoned by the master, without any intention of returning to resume posses- sion. (ij Salvage may be forfeited by misconduct, as by acts of plundering by the crew of the rescuing vessel, showing a con- nivance of the officers, or gross negligence on their part.(^;)i) (/)ll)id; The Schooner Charles Henry, 1 Ben. 12. (/7)The Merrimac, 1 Ben. 204. (/i)The Merrimac, 1 Ben. 68. (OThe Paint, 1 Ben. ,545 ; The Anchors, etc., Ibid, 77. 0)Coffin t). Schooner, 1 Cliff. 236. (/•)Cromwell v. Bark, 1 Clift". 223, (l)The Attacapas, 3 Ware, 67 (w)Ihid. ADMIRALTY. 271 Seamen may have a lien on the savings of the wreck, and also a claim for salvage, when the wreck is partly saved by their exertions at the same time.(??) Eafts, however, and coal barges, are not regarded as ves- sels, so as to entitle a rescuer to salvage services by a lien upon them.(o) Nor fiat-boats. (/^) Although a contract for the use of a barge is cognizable in admiralty. (7) § 257. A rigid supervision is exercised in admiralty over all ■contracts made with seamen, who, as a class, are proverbi- ally helpless. So, if unusual terms are- inserted in a con- tract, it must appear that they were explained clearly to the men, or the contract will be set aside, and the usual terms enforced. And every contract must be in writing, under act of congress of 1790. (r) And seamen are never presumed to advert to refined distinctions of law when they are not even alluded to by the terms of the contract. (s) § 258. In regard to transportation, there is no distinction be- tween a contract for conveying passengers and one for convey- ing merchandise, each giving rise to the same liability and the same lien on the vessel,! i() whether on the ocean or on internal navigable waters. («) And a contract for a charter-party or affreightment is always a matter of admiralty cognizance, (t;) unless it be for carriage between ports of the same state. And an action is available to an assignee or to the transferee of a passage ticket. (^r) § 259. One who advances monej'^ to release a vessel seized by the marshal in another state, has a lien upon the money so advanced enforceable in rem, in an admiralty court. (.c) § 260. The question has sometimes arisen whether, when a note or other security has been given for the performance of a maritime contract, suit can be brought upon it in admi- ralty, since a note is a common law contract in itself. It has (n)The Bowditch, 3 Ware, 71. (OTlic ISIoses Taylor, 4 Wall. 427. (f;)Four Cribs of Lumber, Taney, (r/)Steamboat General Buell, 18 533. O. St. .'527. (p)Leddo i). Hughes, 1.5 111. 41. (?))Morewood«. Enequist, 23 How. (g)The Dick Keys, 1 Biss. 408. 493. (?-)The Australia, 3 Ware, 240. (w)C()bb «. Howard, 3 Blatch. 52.5. ^«)The Roohambeau, Ibid, 304. (a;)The Hoyle, 4 Biss. 234. 072 ADMIRALTY. l)L'(.n lifld. however, that a suit may be maintained provided the not I' be surrendered, so that the respondent will not be liable to anotlier action thereon in a common law court. (.//) But it is made to turn upon the question as to whether the note or other securil}', by the law of the place, extinguishes the original contract or not ; for, if po, the original contract will not be enforced in admiralty, and the note must be sued on in a common law court. § 201. In a suit on a bottomry bond, executed on vessel and cargo by the master, where it appeared that the vessel was not hired, but retained by the owners, through the mas- ter, and that the cargo was property captured by the United States, a distinction was made betwen the vessel and cargo, the former being held under the lien, and the latter dis- charged of it,(^) . § 2(i2. In matters where the limitation of an owner's lia- bility is concerned in cases of collision, it is held not strictly necessary that the vessel be actually arrested, or that a fund be in the possession of the court, although in England this must be the case, or else there must be the existence of "a state of things amounting to an equivalent for the arrest of the ship,"(rt) § 203. Much the same distinction exists in regard to torts which prevails in matters of contract ; that is, the torts must be strictly maritime in their nature ; and so, where the owners of a ship filed a libel against a tug, and alleged that while the ship was at anchor and ready for sea the tug took off eight sailors and their baggage, against the remonstrance of the offi- cers of the ship, whereby the ship was detained from the voyage until new men could be obtained, and the libel claimed the demurrage and advance wages paid the deserters, the com-t intimated a doubt of the jurisdiction. (ft) Where a tort, however, is partly committed on the land and partly on the high seas, the whole being a continuance — as, for example, in the abduction of a minor, on board a vessel — it (^)Keppert v. Robinson, Taney, (sjTlie Othello, 5 Blatch. 342. 494, citing 12 Wheat, 611, 3 How. (a)the Norwich, 6 Ben. 335. 573, and 2 Story, 460. (5)The Starbuck, 5 Ben. 53. ADMIRALTy. 273 will be cognizable in admiralty ;(c) although there can be no joinder of a tort against two with another against one only, ('/) since this is multifarious. An assault committed by a master upon a seaman, onboard a ship, in a port of the United States, is cognizable in tlie admiralty, even though the act be committed within the body of a county. (e) And torts, or wrongs, committed upon a passenger on the high seas, by the master of a ship, are cog- nizable in admiralty, whether they are direct trespasses or consequential injuries. On this. Story, J., remarks: "In re- spect to a case like this, a suit by passengers against the master of the ship, for continued wanton cruelty and ill- treatment, is certainly entitled to be listened to with atten- tion. The authority of a master at sea is necessarily sum- mary, and often al)Solute. For the time he exercises the rights of sovereign control, and obedience to his will, and even to his caprices, becomes almost indispensable. If he chooses to perform his duties or to exert his office in a harsh, intemperate or oppressive manner, he can seldom be resisted by physical or moral force ; and, therefore, in a lim- ited sense, he may be said to hold the lives and personal wel- fare of all on board, in a great measure, under his arbitrary discretion. He is, nevertlieless, responsible to the law, and, if he is guilty of gross abuse and oppression, I hope it will be found that courts of justice are not slow in visiting him, in the shape of damages, with an appropriate punishment. "In respect to passengers the case of the master is one of peculiar responsibility and delicacy. Their contract with him is not for mere ship-room and personal existence on board, but for reasonal)le food, comforts, necessaries and kindness. It is a stipulation, not for toleration, merely, but for respectful treatment; for that decency of demeanor W'hich constitutes the charm of social life ; for that attention which mitigates evils without reluctance, and that prompti- tude which administers aid to distress. In respect to females it proceeds yet further; it includes an implied stipulation (c)Steele v. Thatcher, i Ware, ((Z)lloberts «.Stomekl,3 Ware, 184. 94. (e)lbicl, p. 188. V. 1—18 274 ADMIRALTY. against general obscenity, that immodesty of approach which borders on lasciviousness, and against that wanton disregard of the feelings which aggravates every evil, and endeavors, b}- the excitement of terror and cool malignancy of conduct, to inflict torture on susceptible minds. What can be more disreputable, and, at the same time, more distressing than habitual obscenity, harsh threats and immodest conduct to delicate and inoffensive females? What can be more op- pressive than to confine them to their cabins by threats of personal insult or injury"? What more aggravating than a malicious tyranny which denies them every reasonable re- quest, and seeks revenge by witholding suitable food and the common means of relief in cases of sea-sickness and ill health ? It is intimated that all these acts, though wrong in morals, are yet acts which the law does not j^unish ; that if the per- son is untouched, if the acts do not amount to an assault and battery, they are not to be redressed. The law looks on them as unworthy of cognizance. The master is at liberty to inflict the most severe mental sufferings, in the most tyran- nical manner, and yet, if he witholds a blow, the victim may be crushed by his unkindness. He commits nothing within the reach of civil jurisprudence. My opinion is that the law involves no such absurdit}*. It is rational and just. It gives compensation for mental sufferings occasioned by acts of wanton injustice, equally whether they operate by way of direct or of consequential injuries. In each case the con- tract of the passengers for the voyage is, in substance, vio- lated, and the wrong is to be redressed as a cause of damage. I do not say that every slight aberration from propriety or duty, or that every act of unkindness or passionate folly, is to be visited with punishment; but if the whole course of con- duct be oppressive and malicious, if habitual immodesty is accompanied by habitual cruelty, it would be a reproach to the law if it could not award some recompense. "(/) The term "torts," therefore, includes consequential injuries; such as, at common law, are actionable in case. And so, where a railroad company left piles driven in a navigable (/jChamberlain v. Chandler, 3 Mason, 245. ADMIRALTY. 275 river, so as to injure a vessel passing on its course, the com- pany were held liable. (^) Locality is the leading test of jurisdiction in torts. And where a vessel took fire at a wharf, alleged to be from the negligence of the officers, and the fire spread and consumed certain store-houses on the wharf, it was held not to be a case for admiralty proceedings, because the injury complained of occurred on the land and not on the water. (/j) And yet this does not, at first view, seem altogether in harmony with the principle stated above, that, in case of a continuous tort, occurring partly on the water and partly on the land, admi- ralty has jurisdiction. The distinction, however, is probably this: that the one is a continuous act of tort, or trespass; the other is consequential, or case. § 264. As to violations of the revenue laws, a suit merely to enforce the payment of duties must be brought at common law, and cannot be entertained in admiralty; the jurisdiction of which in rem only extends to seizures for forfeitures under laws of impost, navigation, or trade of the United States. (/) And, even then, the seizure must be made on the water* and not on the land. (J) However, actual possession by the officers of the law needs not to be made, but a constructive seizure is sufficient to give jurisdiction in revenue cases, and the action may be in personam. And, having once acquired regular jurisdiction, no subsequent irregularity can defeat it; or accident, as, for example, an accidental. fire. (/c) § 265. As to crimes — that is, felonies — it is provided by con- gress that they are only cognizable in admiralty when com- mitted on the high seas, or else in some bay, etc., outside of the jurisdiction of any state, or in some place on land exclu- sively within the United States jurisdiction, as distinguished from state jurisdiction ; as, for example, forts, arsenals, dock- yards, magazines, and the like.(/) The high seas may be (^)K. R. V. Tow-boat, 23 How. 214. (ijThe Sarali, 8 Wheal. 394. (/()Tlie Plymouth, 3 Wall. 33. (^-)Tlie Bolina, 1 Gall. 83. (i)?50Chestsof Tea, 12How. 487; (i)United States «. Bevans, 3 500 Boxes of Pipes, 2 Abb. (U. S.) Wheat. 388. 500. 276 ADMIRALTY. regarded as extending to a roadstead, (m) but not to a bay entirely landlocked and enclosed by reefs, («) and still less to a river, within the ebbing and flowing of the tide.(o) Upon the high seas, every vessel, public or private, is a part of the territory of the nation of the owners, for jurisdic- tional purposes, so that an offence committed on board is an offence against the sovereignty of the nation. But a private ship, entering a foreign jurisdiction, is subject to the laws there prevailing, and a crime may be punished by the local laws.Qj) And even on the high seas, of an offence committed on board one vessel, which takes effect and is consummated on board another vessel belonging to a different nation, the latter sovereignty has the jurisdiction. For example, an American vessel was lying at harbor, in one of the Society Isles, and a gun was fired, whereby a person was killed on board a schooner belonging to the natives, and lying in the same harbor. It was held that if the harbor was to be con- sidered as part of the high seas, yet, in contemplation of law, the act was done on board the foreign schooner, where the shot took effect, so that jurisdiction belonged to the foreign government (<^) — a principle prevailing everywhere; so that where a person on the high seas was killed by a shot fired by one on shore, the murder was declared to have been on the high seas, and therefore within admiralty jurisdiction. (r) But to give jurisdiction, in a case of murder, not only must the stroke be given on the high seas, but the death must also occur there, it seems, and not afterwards on the shore. (s) § 266. The rule of jurisdiction does not apply to pirates, since these are outlaws, and may be destroyed by whomsoever finds them. A pirate is defined to be one who acts solely on his own authority, without any commission from a sovereign (?n)United States v. Pirates, 5 (^)People v. Tyler, 7 Mich. 200. Wheat, 200. (9)Uuited States v. Davis, 2 Sunin. (7i!.) United States v. Robinson, 4 4S4. Mason, 307. (r)Ibid. 485. (o) United States «. Wiltberger, 5 (.s) United States v. McGill, 4 Dall. Wheat. 93. *426. But see chapter on Crimes. ADMIRALTY. 277 state, seizing by force and apijropriating to himself, without distinction, every vessel he meets with. And robbery on the high seas is piracy, but, in order to constitute the offence, the taking must be felonious, and the quo animo may be inquired into. And so a commissioiled cruiser does not become a pirate merely by exceeding his authority. (^) And robbery of one by another, merely, on board a lawful ship, is not piracy; but the pirate act implies robbery of another vessel, or else mutiny on board. (t/) The offence includes freebooting, not under acknowledged authority or deriving protection from the flag or commission of any government. (r-) And it extends to such an act committed ./'vrwi a lawful vessel. («•) But it does not extend to a murder committed by a foreigner on a for- eigner on board a foreign vessel. (r) § 267. And this leads to the question of admiralty juris- diction, in its relation to foreigners and foreign countries, in a general view. The principle on which the admiralty courts of England and the United States take cognizance of actions in j)crs')uam and in rem. between foreigners is to prevent a fail- ure of justice, and where there is not a necessity in this par- ticular, they will decline to entertain suits; as, where the voyage is not broken up or completed. In England, even then, but not in the United States, the assent of the repre- sentative of the government must be obtained. (^) It rests, therefore, almost entirely in the discretion of courts whether to hear and determine a cause, or remit it to the forum of the nation to which the parties belong, (^) and the jurisdiction rests on exj^ediency alone, whether on the matter of wages, salvage or any other claim ; although, usually, suits for salvage are entertained even where all the parties are for- eigners, (a) The principle is thus stated : "A court of admiralty has (^)Davison v. Seal-skins, 2 Faine, (w)United States v. Pirates, 5 833. Wheat. 195. (w)United States v. Palmer, 3 (.c)Il)id, 194. Wheat. 625, 634. (/y)Uavis«. Leslie, 1 Abb. Adin.134. (H)United States «j.Smith,5 Wheat. (3)194 Shawls, Ibid, 321, and cases 163. f^ited. (a)The Bee, 1 Ware, 336. 278 ADMIRALTY. jurisdiction in suits for wages promoted by foreign seamen against foreign vessels, as questions of general maritime law. But the exercise of such jurisdiction is discretionary with the court, and to be permitted or withheld, according to circum- stances. The express consentt)f the foreign minister, or con- sul, is not essentially necessary to found such jurisdiction. Nevertheless, the exercise of it is rather a matter of comity than of duty. Whether it ought ever to be exercised against the remonstrance of the representatives of such foreign nation we need not inquire, as we cannot foresee all possible cases, and that question is not before us. But when the court does entertain such cases, without the request of the representative of the government, they will require the libellants to exhibit such a case of peculiar hardship, injustice or injury likely to be suffered without such interference as would raise the pre- sumption of a request ; because it is, in fact, conferring a favor on such foreign state. If the contract with the mariners has been dissolved, if the voyage has been terminated, and there is a dissolution of the relation of the seamen with the ship, or if such dissolution has been caused by some wrongful act of the master, or if a bottomry bond has become due at the end of the voyage, and the remedy might be endangered by delay, in such and like cases, as a matter of comity, not of right, courts of admiralty will interfere to protect the rights of for- eigners in our ports. "(6) Hence, it has been held expressly that a libel for wages, brought by British sailors against a British ship on a voyage ending in a home port, will not be entertained against the protest of the British consul, unless there be sj^ecial circum- stances to justify it ; as a clear deviation from the voyage pre- scribed in the articles, or cruelty, or the breaking up of the voyage, (c) A lien may be thus enforced, also;(f?) and so, where a libel was filed against a foreign ship in an admiralty court of the United States, the libellant and claimant both being foreign- (6)Goiizales v. Minor, 2 Wall. Jr. (c)The Beclierdass Ambaidass, 1 353. Low. 570. ((7)The Maggie Hammond, 9 Wall. 435. ADMIRALTY. 279 era, the place of shipping and the place of consignment being foreign ports, and the whole ground of libel a matter which occurred abroad, the court considered the question of juris- diction an open question ; but entertained the jurisdiction. (e) Even torts occuring between foreign vessels in foreign waters are sometimes entertained in our courts ; as, in a cer- tain case, where a Dutch schooner and a Russian bark col- lided in the North sea.(./") § 268. We now notice briefly the prize jurisdiction of ad- miralty, which, of course, pertains essentially to a state of war. And whenever war is declared, the property of the enemy, whether on land or sea, is a lawful subject of prize ; although, as a matter of comity, a relaxation is mutually accorded to persons and property within the country belong- ing to the hostile nation for a certain period after the break- ing out of war. And the question of prize does not depend upon locality — that is, where the capture is made ; but, whether it be upon the high seas or in port, it is equally valid to sup- port a condemnation. The validity of the capture itself is to be tried by the laws of war, jure belli, as determined by the law of nations, although the effect and ultimate direction of the forfeiture depends on the right given by the terms of a commission, according to universal usage and legal defini- tions. Vessels at sea are not considered as a part of the ter- ritory of a nation. Its flag is only a designation of where the vessel belongs, and protects nothing but the vessel itself. (^) In time of war the courts of the belligerents have exclusive jurisdiction of the subject of prize, with all its incidents and consequences. And if prizes be made by a vessel equipped in a neutral port, and the prize be brought into the ports of the neutral nation, it will be restored, being illegal as to that nation. A seizure as a prize is, in itself, lawful, provided it be under the rightful authority; and, even if the condemna- tion fail, it is no ground of action against the capture. (/i) Yet, on the other hand, an unjust condemnation may require redress (e)Ibid. (g) 21 Bales, etc. ,'2 Paine, 602. (/)The Bark Jupiter, 1 Bon. 542. (/i)Juands v. Taylor, 2 Paine, 658. 280 ADMIKALTY. by the state whose courts pronounce it ; and, if redress be refused, may be a ground for reprisals or war.(i) The prize court of an ally cannot condemn captured prop- crtv, but tiie courts of the country to which the captor belongs may sit in an ally's territory, though not in neutral terri- Neither the president nor any military officer can establish a court in a conquered country and authorize it to decide upon the rights of the United States or of individuals in prize cases, nor to administer the laws of nations — this establishing of courts being a matter of legislative power wholly. (A;) A court may adjudicate in a matter of prize, even if the property has not been brought within the territory of its juris- diction, and proceed in rem whenever the prize or the pro- ceeds thereof can be traced into the hands of any person whomsoever. (Z) But, as a general rule, it is a captor's duty to bring the property to be adjudicated on by the courts of his nation, and if he fail to do so the courts will treat him as a trespasser ab initio, on suit by the captured party, unless there are circum- stances requiring an immediate sale, which msiy be a sufficient excuse. (»i) It is held that our courts have no jurisdiction to redress any supposed torts committed on the high seas by a regularly commissioned cruiser of a friendly foreign power, unless such cruiser has been fitted out in violation of our neutrality. (/i) The prize court may hear and determine all claims arising after a capture against a vessel, even as to matters of tort. Thus, when a prize ship on the way from the place of cajD- ture to the port of adjudication committed a marine tort, by running into and sinking another vessel, and was afterwards duly condemned and sold, it was held that the claims for damages from the collision should be paid out of the pro- (/jllallcck's Intern. Law, (1861,) (l)llnd. P- 7(i;5. (m)Ibid, p. 516. {,/)Il)id, p. 756. (7i)L'lnvincible, 1 Wheat. 252. (/,).Teck('r v. Montgomerj^, 13 How. 515. ADMIEALTY. 281 ceeds of the sale first, and the remamder distributed to the captors, (o) On bills given to ransom a captured vessel, the court of admiralty has exclusive jurisdiction to entertain suits. (2^) In case of rebellion, where the rebels are recognized as belligerents, the same principles prevail as to prizes when these are taken by the concurrence of the naval arm of the government. This concurrence must be provided for by stat- ute, however; or otherwise the capture must be made by war vessels alone. And vessels are not regarded as war vessels which are used merely as transports; and if, with their con- currence, the military forces on land make a capture, this does not bring the property captured within the prize juris- diction. Captures on the great rivers are subject to prize laws; as, on the Mississippi. (g') In matters of prize the supreme court can only exercise apjoellate, not original, jurisdiction, nor by order of transfer. (r) § 269. In regard to foreign ships, repairs or supplies, in our ports, create a lien on the vessel ;(s) the contrary of the the rule as to home ports, as before set forth in this chapter. (^) § 270. The admiralty has no direct jurisdiction over trusts, nor can it decree a specific performance of any agreement, although relating to maritime affairs. (t() .(«9)The Siren, 7 Wall. 1.j3. (.s)The Aurora, 1 Wheat, 96, 103 ; (p)Maisonnaire v. Keating, 2 Gall. The .Jerusalem, 2 Gall 349. 343. {t)The Lottawana, 21 Wall. 578. (g)Bales of Cotton, 1 Woohv. 243. (w)Davis «. Child, Daveis, 71. (r)The Alicia, 7 Wall. 573. 282 PROBATE. CHAPTEE TV. PROBATE. 271. Nature of probate jurisdiction. 272. Authority mainl}^ statutory'. 273. Relation with com-ts of chancery. 274. Collateral questioning of proceedings. 275. Domicile determines jurisdiction. 276. Wills. 277. Appointing power. 278. Power of control and removal. 279. Assets of estates. 280. Claims against estates. 281. Partition and dower. 282. Sale of land to pay debts. 28.3. Binding out orphans. 284. No power to sell homestead. 285. Deciding on validity of bequests — trusts. 286. Partnership accounts. 287. Set-offs. 288. Situs of per.sonal property. 289. Limitation of control of administrators, etc. 290. Probate of wills devising real estate. 291. Specific performance. 292. Matters of fraud. 293. Changes of venue. 294. Statutes of limitation. 295. Administrator of an administrator. 296. llents for real estate. 297. Habeas corpus writs. 298. Contempts. 299. Settlements and distributions. 300. Same — limitation of juri.sdiction. 301. Disqualification of probate judge. 302. Terms of court. § 271. Courts of probate have only a limited jurisdiction, and their powers are strictly construed; so that if a statute PROBATE. 28:3 requires notice, and no notice is given, the party entitled to notice may treat the .judgment as a nullity. (a) However, they are courts of record ;(^) so that they are not regarded as inferior courts in the technical sense, although limited in their jurisdiction ;(c') and that, whether exercised by distinct courts or by chancery courts. (tZ) Their leading jurisdiction is the probate or proof of wills, and matters strictly incidental thereto. Such a court will decide only upon the factum of the will, but leave the disputed riijlits of parties to be determined by other tribunals thereafter. (e) And, in this particular, it has jurisdiction in wills pertaining to land as well as personal property. (/) There are, however, many incidentals regarded as belong- ing to the exercise of this jurisdiction, which we shall here- after notice — some of them an accretion of late years. Among these incidentals are granting letters testamentary, or of ad- ministration, and settling accounts of administrators, guard- ians, etc.;(.r/) and, in some states,' determining questions of dower rights, so far as they are determinable as matters of law, and not of equity. (/i) § 272. The authority exercised by these courts is mainly statutory. The authority to perform such and such functions, however, needs not be given in express terms, but may arise from the general language of the statute, or by implication from the necessity thereof to the proper exercise of tlie powers exj)ressly given. (i) i^ 273. A court of chancery will not supervise the exercise of the jurisdiction of separate courts of probate, any more than they will intermeddle with the jurisdiction of courts of common law ; as, for instance, in the settlement of estates, (a)Matthewson v. Sprague, 1 Cur- (e)Fiiicli v. Finch, 14 Ga. 3G2 tis, C. C. 457. (/)Matthewsou». Sprague, 1 Cur- (^-)Cliase V. Whiting, 30 Wis. 547. tis, C. C. 457. (c)Cody v. Raynaud, 1 Cal. T. 275; (gijSteen v. Steen, 25 Miss. 514. Davie «. McDaniel, 47 Ga. 195; (A)Gardner w. Ganhicr, 10 11. I. Hanks v. Neal, 44 Mi.ss. 21.S. 211. ((Z)Bcrnheimer «. Callioun, 44 (^)Seanian v. Duryca, lU Burl). Miss. 426. 523. 284 PROBATE. wherein probate courts have entire and exclusive jurisdic- tion ;(j) with the exception of some states, however, (/c) The general rule is thus stated by the supreme court of Pennsylvania : "The orphans' court is sometimes called a court of limited jurisdiction. This is true, if regard be had to the derivation of its powers ; for it possesses none inher- ently, and exercises such only as are conferred by or implied from legislation ; and it is true, also, as to the suhjccts of its jurisdiction, for these are set down in the statutes; but, within its appointed orbit, its jurisdiction is exclusive, and therefore, necessarily, as extensive as the demands of justice ;"(/) and, "being a court of equity, it can mould its process according to the necessities of the case which it has in hand."(m) It is manifest, however, that, like other courts, these may have a concurrent, as well as exclusive, jurisdiction. Thus, w^iile in Pennsylvania they have exclusive jurisdiction over questions of advancement and distribution, (/i) and also in cases where grandchildren, whose father has died before the grandfather, take the father's share, subject to his debts to the intestate, so that in an action of ejectment the question of such inde])tedness cannot be raised, but must be deter- mined in the orphans' court, (o) on the other hand, the gen- eral jurisdiction is not exclusive of common law remedies a'gainst estates, (/j) and as to legacies it is exclusive only when the legacy is charged on land.(^) ( j)Heirs v. Adams, 22 Vt. 52. erty under a power in the will. And so, the probate court can Angisola v. Arnaz, 51 Cal. 435. order the sale of personal property, (/i;)Clarke v. Perry, 5 Cal. 60. as stocks, when this is necessary in (^)Shal]cnberger's Appeal, 21 Pa. order to a settlement and distribu- St. 341. lion. Bobb's Succession, 27 La. (m)Suyder's Appeal, 36 Pa. St. An. 344. Only the probate court 168. has power to order final distribu- (?i)Hughes' Appeal, 57 Pa. St. tion in any case, or to compel an 179. executor to account tor the per- (f>)lnsurance Co. v. Wilson, Ibid, sonal propert}^ in his hands, whether 182. it be .such as the testator owned at (^)McLean'sEx'rst). Wade, 53 Pa. the time of his death, or the pro- St. 146. ceeds of the sales of personal prop- (g)Burt v. Ex'rs, 66 Pa. St. 400. PROBATE. 285 The jurisdiction may be concurrent with chancery, (r) or common law.(s) In North Carolina it is held that, although a court of pro- bate has exclusive original jurisdiction of special proceedings to recover legacies and distributive shares, (a different rule from that in some other states,) yet, if the executor has so assented to a legacy as to amount to an implied or express promise to pay it, suit must be brought for it in the superior court. (/) It is different in Pennsylvania, by statute of 1836. Ashforcl v. Eicing, 25 Pa. St. 213. The ordinary rule, that consent cannot give jurisdiction, is fully applicable in a matter belonging to the exclusive juris- diction of the jjrobate court. (w) And, also, in such cases, mistakes in a judgment can only be corrected by appeal in the usual mode,(t;) § 274. As to questioning, collaterally, the decisions of pro- bate courts, the general rule applies, "that where the matter adjudicated is by a court of j)eculiar and exclusive jurisdic- tion, and the same matter comes incidentally before another court, the sentence in the former is conclusive upon the lat- ter as to the matter directly decided, not only between the same parties, but against strangers, unless it can be im- peached on the ground of fraud or collusion. "(?r) Hence, a grant of letters cannot be collaterally attacked in another county, by showing that the last place of residence of the deceased was not in the county where the letters were issued, (.r) The danger of an opposite doctrine is quite clearly stated by the supreme court of New York: "Where the jurisdiction of a subordinate tribunal, having cognizance of the general subject, has attached by the presentation of a verified prima facie case, and by the appearance of the parties, its decision, even on a (piasi jurisdictional fact, such as that of inhal)itancy, (r) Robinson W.Stanley, 3SVt. 570. («).Tu(i,ue of Probate v. Lane, 51 (s)Shoemaker v. Brown, 10 Kan. N. H. 343. 383 (w)Lessee v. Selin, 4 Wash. ('. 0. (^Miller v. Barnes, 6.5 N. C. (i7. 721. (w)Dodson V. Scroggs, 47 Mo. 285. (j;)Ir\vin v. Scriber, 18 Cal. 503. 286 PROBATE. must be conclusive, unless reversed on appeal. To allow it to be called in question, collaterally, and on every occasion, and during all time, would be destructive of all confidence. No business in particular, depending on letters testamentary, or of administration, could be safely transa'--ted. Payments made to an executor or administrator, even after judgment, would be no protection. Even if the debtor litigated the pre- cise point and compelled the executor to establish it by proof, the adjudication would avail him nothing, should a subsequent administrator, as in this case, spring up, and, after the lapse of the fifth of a century, demand payment a second time, when a scintilla of evidence on one side remained, and all on the other had perished. A large number of titles, too, depend for their validity on decrees of foreclosure, and these decrees are often made in suits instituted by executors or administra- tors, or their assigns. Must these, too, be subject to be over- hauled at any period, however remote, on the nice question of residence"? — a question often difficult to decide where the facts are clear, and much more so, of course, where the facts are obscured by lapse of time, and loss of documents and witnesses. "() In Louisiana it is held that the appointment of a guardian [tutor] cannot be questioned col- laterally, but only in a direct proceeding to annul and set aside the appointment. (c) In Texas it is held that an entire want of jurisdiction may be questioned collaterally; as, for example, that the supposed decedent was living or otherwise; that the estate had been fully administered on previously; but not any irregularity or error in proceedings where juris- diction had attached to the subject-matter. (d) In Missouri it is held that a grant of administration is conclusive on all other courts, (e) (a)Lovett's Ex'i-s v. Matthews, 24 tion, they are not to be regarded as Pa. St. 332. having a mere special, instead of (6)Wyatt's Adm'r v. Steele, 26 general, jurisdiction. Their juris- Ala. 650. diction is general over the class of (c)Martin v. Jones, 12 La. An. subjects within their province, so 368. that they are to be regarded as hav- (d)Fisk V. Norvel, 9 Tex. 14. ing the attributes of superior courts («)Naylor's Adm'r v. Moffatt, 29 quoad hoc, and as, therefore, enti- Mo. 126. tied to the benefit of presumptions It is held in Illinois, and is, I similar to those which prevail as to think, the general rule, that, in re- superior courts generally- Bost- gard to the administration of es- wick v. Skinner, SO 111. 147. That tates, the decisions of a probate is, collateral attacks are not to be court are supported by the same allowed as to their findings. Gam- presumptions that attach to the ble v. Jordan, 54 Ala. 368. Tliis is actions of superior courts; and it the weight of authority, although is not necessary that the facts jus- it seems to be held otherwise in tifying the decision shall appear some states. The cases are col- affirmatively on the face of the pro- lected in an article in the May num- ceedings. People, for use, etc.,*. ber, 1880, of the North American Gray, 72 111. 343. Although pro- Review, as to the various points bate courts are of limited jurisdic- necessarily included in prol)ate 2S8 PROBATE. 8 275. The last domicile of the deceased determines the- jurisdiction as to administration, and that, too, when patent interests are to be brought into litigation by or against execu- tors ;(/) unless in the case of a non-resident of the state^ when usually administration may be granted wherever prop- erty exists within the state. (.9) The residence of minors deter- mines jurisdiction in matters of guardianship, and even on removal of the father holding the relation to another county^ •while the minors remain in the county from which he removed and where he was appointed, (/t) In Mississippi there is a qualification to the general rule as to residence of decedent, namely, that if the greater part of his estate is in one county while his domicile had been in another, letters may be issued in the former. (i) Also, in Texas, the last residence must have been not a temporary one, but a fixed residence. (,;) And probably this is the prevailing rule everywhere, although in. Texas it is so defined by statute expressly. In California, if a county is divided after the death of an intestate, the former county retains the jurisdiction, although the former domicile of the deceased may fall within the limits of the new county. (A:) But, in Mississippi, the legislature may by special act transfer jurisdiction from one county to business. The article discusses, of close invest itration, and it will also, the question whether the de- not be very surprising if, in this, as cisiou of a probate court, as to the in other instances, authority may- fact of death, is conclusive or not; be found opposed to legal princi- and while it agrees that the weight pie. If a court of high standing- of authority sustains the position once goes astray from fundamental of Chief Justice Marshall, that the principles, and their logical conse- act of appointing an administrator quenccs, it may quite naturally on the estate of a person not really draw into its wake the majority of dead is totally void, (Griffith v. Fra- courts in the country, and thus es- zier, 8 Cranch, 23 ; Moore v. Smith, tablish error by a general authority. 11 Kich. [Law] .569 ; Jochimssen «. (/)Rubber Co. «. Goodyear, ^ Bank, 'i Allen, 87; Meliar v. Sim- Wall. 789. mons, 45 Wis. 334) yet it argues, on (^)]\Iillcr v. Adm'r, 26 Ala. 247. principle, for the contrary doctrine (7i)Lyons v. Andrews, 12 La. Ad. with considerable force, which is 685. sustained somewhat faintly by Rod- (/) Cocke v. Finley, 29 Miss. 127. erigas v. Savings Institution, 63 ( j) George t>. Watson, 19 Tex. 367. N. Y. 460. The matter is worthy (A;)Estate of Harlan, 24 Cal. 187. PKOBATE. 289 another, where the intestate had not been domiciled, even without any division of counties, (i) § 276. As to jurisdiction in the case of wills I do not know that in any state the old common law rule prevails that pro- bate courts have cognizance only of wills pertaining to per- sonal property; but usually, I think, in all the states they have original and general jurisdiction of the probate of wills, whether of real or personal estates, (m) subject, sometimes, to special limitations ; as, in Pennsylvania, where there is an objection raised on "a disputable or difficult matter," a register can proceed no further without calling, on request of the objector, or any person interested, a register's court, and a mandcumts will lie to compel him to do so.(/i) In New York a lost or destroyed will cannot be proved in the surro- gate's court — the jurisdiction belonging to the supreme court, in such case.(o) And, probably, a missing will can never be probated in any of the states. For, indeed, while a will de- stroyed by spoliation may be restored in equity, yet even equity will not take jurisdiction to restore a lost will, or one that has been destroyed by accident, or one that has been suppressed by fraud, (p) A will may be probated in a state wherein there is prop- erty, although the testator, at his decease, was domiciled in another state. And even where a testator had sold his dom- icile and died in traveling, without having acquired a new domicile anywhere, his will, it was held, could l)e rightfully (?)L:irned v. Matthews, 40 Miss. 210. (m)Htiirs Heirs v. Hall, 39 Ala. 29.') ; Mattliewson v. Spnigue, 1 Curt. C. C. 457. Courts of law and equity in this country will not consider testa- mentary papers, or rights dependent upon them, without the preliminary probate — this being regarded as fundamental and jurisdictionaJ. Wood V. Matthews, 53 Ala. 1. And as this probiite l)elongs essentially to the probate court, this court is v.l— 19 regaided as liaving exclusive juris- diction for this purpose, in the first instance; so that even a deed can- not be admitted in evidence to es- tablish title under an unprobated will. Willamette Co. «. Gordon, 6 Or. 17(3. (iSee p. 284, sujyra, noicj.) (7i)Commonwcalth w.Bunn, 71 Pa. St. 405. (o)Bulkley v. Kedmond, 2 JJradf. (N. Y.) 2sl'. (7>) Perkins v. Perkins, 21 Ga. 14, citing Story on Equity. 290 PROBATE. probated where he was domiciled before, even if he had no intention of ever returning to the place. (2) In general, it does not belong to a court of probate to adju- dicate on the rights of parties under a will; and if such a power does exist anywhere, it is wholly statutory, (r) Nor to determine the validity of a will concerning real estate, the probate being confined to its due execution ;(s) nor after dis- tribution on the basis of the validity of a will to entertain a suit to recover personal property upon the ground that the will was void.(^) However, as an instrument of settlement and distribution, it may take cognizance of ademption of legacies. («) § 277. The power of appointment in a court of probate extends to administrators of intestate estates, administrators under a will which does not name an executor, administrators de bonis non, guardians, custodians, and trustees testament- ary. A custodian is appointed when needed to take care of per- sonal property pending actual administration ; as, where an executor under a will refuses to give a bond in such sum as required by the court, and proceedings are pending thereon. (i') Testamentary trustees are appointable to fill vacancies in regard to trusts created by will,(?/j) the vacancies occurring while the active branch of the trust continues; that is to say, the appointment will be made when necessary, and only then.(,r) And appointment of an administrator de bonis non is also to fill a vacancy; as, when an administrator dies or resigns, and the estate is not settled. As to the regular appointment of an administrator, it can- not be questioned, collaterally, even when there are irregulari- ties in the manner; and the appointee is an administrator (ig (7)81111 V. Corporation, 38 Miss. (?/)May's Heirs v. Adm'r, 2S Ala. 64t;. 152. (r)Willard's Appeal, 65 Pa.St.267. («)Sarle v. Court of Pro]>ate, 7 U. (.s)Story on Equity, (Redfield's I. 273. Ed.) H 184, 238. (w)Shaw v. Paine, 12 Allen, 293. (i!)Carter's Heirs v. Adm'rs, 39 (a;)CTraham v. Dewitt, 3 Bradf. Ala. 585. (N. Y.) 186. I PROBATE. 291 facto, notwitlistanding such irregularities. (?/) But if letters are issued where an intestate was not a resident of the state, and left no property in the state, and none afterwards comes into the state, a grant of letters is void, as coram non jiidice, there being no basis of jurisdiction. (^) It has been held, in California, that the mere grant of ad- ministration to a public administrator is sufficient to give him authority even if the letters are not actually issued ; and he will be allowed to adduce the judgment in support of his au- thority, (a) The appointment of guardians is controlled by similar prin- ciples. But, in this, chancery may have concurrent jurisdic- tion. (/?) A non-resident may be appointed guardian, in the discretion of the court. (c) But a court cannot aj)point a res- ident guardian for non-resident minors, since it can only make such appointment when the minors are wards of the court, the relation being personal. As to property within the jurisdiction, however, a guardian may be appointed, as in the case of administrators. ((?) Where a guardian is appointed for a lunatic, the appoint- ment is void unless there has been a preliminary inquest of lunacy, (e) § 278. The court has the power of controlling and of re- moving administrators, executors or guardians, and, there- fore, of revoking letters actually issued; as, for instance, if the letters were obtained by fraud. (/) And it is held that a probate court can remove puhl'ic administrators as well as others, and order them to make immediate settlement — a failure to obey which order is a punishable contempt. Bin- son s Case, 73 N. C. 278. The power of removal is an essen- tial power, and exists at common law. Taylor v. Biddle, 71 N. C. 1. Executors are controllable for gross abuses of their trust, (.y)AVight V. Wallbaum, 39 111. (A)Campbcll v. Conner, 42 Ala. 563. 131. (2)Iliiilroad v. Swayne's Adm'r, 26 (c)Beriy v. Johnson, 53 Me. 401. Ind. 47s. (rf)Boyd v. Ghi.ss, 34 Ga. 25(j. ('^Abel «. Love, 17 Cal. 233. (^ijEsJava v. Lepetre, 21 Ala. 504. (/)Marsten v. Wilcox, 1 Scam. 60. 2!) 2 PROBATE. SO fill- as it is discretionary under the will ; (g) but courts of probate have no control over a bequest, coupled with a power to the executors to give the property to such children of the testator as "they shall think proper," although equity will take supervision of the discretionary trust thus conferred, (/i) In New Jersey the removal of an executor belongs exclusively to the orphans' court, unless in some special cases, when it belongs to the ordinary, (i) § 279. The matter of assets belonging to an estate is within the jurisdiction of the court of probate; and so, where, in an action in a common law court for a legacy, the plea of a want of assets was put in, among other pleas, it was held that, while the jury might pass on the other pleas, they could not on this — they could decide the plaintiff's right, and then leave the question of assets to be determined afterwards in the orphans' court; and where a legacy is exclusively payable out of lands, the wiiole question belongs to the court of pro- bate, in some states, at least. (./') However, in case of con- cealment of assets, the jurisdiction rests on such a conceal- ment as renders the act quasi criminal, and the usual remedies at law, or in equity, difficult or impossible — the powers of the court not extending to mere breaches of trust or confidence. (A;) § 280. As to claims against an estate, a court of probate has equitable jurisdiction in allowing them, (l) But legal claims must be settled elsewhere, in cases of dispute, because these courts have no jury, and they are not usually invested with common law powers, as judicial tribunals, to adjudicate con- troverted questions of law or fact. And, therefore, where the validity of an assignment is disputed, the assignors being de- ceased, a court of probate cannot determine such validity, but it may ascertain who are the legal representatives of the assignor thus deceased, and decree the share to those representatives (r/)Chew's Ex'rs v. Chew, 28 Fa. (./)Breden v. Gilliland, 67 Pa. St. St.' 17. 34. (/i)Bi]lingsley v. Harris, 17 Ala. (A;)Taylor v. Burseup, 27 Md. 214. 219. (»)Leddel's Ex'r v. Starr, 4 Green, (;)Hurd v. Slateu, 43 111. 349. Eq. 159. PKOBATE. 20 o whicli may belong to tliem as such,(m) And so in regard to the evidence, validity, and amount of a disputed debt.(«) In some states there may be exceptions to this general rule, how- ever, made by statute. But, otherwise, the decree of probate courts as to payment depends upon the judgments of courts of law in disputed claims. (o) So, where a will creates a trust, and appoints a trustee, and a court of probate admits the will to probate, and supervises the administration of the estate under it, it has no jurisdic- tion to determine conflicting claims to the income of the trust fund, and compel the execution of the trust according to the will, although this may be regarded as an equitable, and not a legal, controversy. (j9) In like manner, if a third party claim property in the hands of an administrator, a court of probate cannot try the question of title, and make an order for the administrator to give up the property to the claimant, (g) Nor can a court of probate ti-y the question of a disputed homestead, even where it has a right to set out a homestead. (r) But the right of a claimant is not prejudiced by bringing a petition therein. This being dismissed, a resort may afterwards be had to the appropriate court. (s) However, in Alabama, the matter is made' to depend on the plainness of the proof. And so, where there is an appli- cation to sell lands in partition, the court is held not to have jurisdiction to determine complicated questions of law and fact as to the title ; but it may receive the ordinary evidence of title afforded by deeds of undisputed validity, when the (m)Wood V. Stone, 39 iST. H. 573. called ; so that they cannot corn- In) Disosway v. Bank, 24 Barb. G3 ; pel an administrator to conve}'' Andrews v. Wallace, 29 Baih. 350. propeity he holds in trust to the (o)Milier v. Dorsey, 9 Md. 323; heirs of an intestate, and account Bowie V. Ghiselin, 30 Md. 555. for the rents and profits. The en- (7))Hayes v. Hayes, 48 N. H. 219. forcemeut of such trust belon_2;s to While, as before stated, probate equity. ITaverstlck v. Trudell, 51 €ourts can compel settlements by Cal. 431. administrators and executors, they (7)ITomer's Appeal, 35 Conn. 113. do not attempt to enforce the per- (r)La7,ell «. La/.ell, 8 Allen, 575; formance of duties pertaininii; to Woodward «. Lincoln, 9 Allen, 2:59. mailers ol: trust, technically so l,.s)\lercler «. Chase, 9 Allen, 242. 294. PROBATE. applicant's title is merely denied. (i) In Mississippi it is held that titles may be adjudicated upon as to their validity; as also contracts, incidentally, though not in a direct proceed- hig.(") § 281. In matters of partition and dower the court of pro- bate, in some states, has tlie power of assignment, in others not; the jurisdiction is altogether statutory. In Maine a court cannot only assign dower, but also sell the reversion. (v) In Alabama the jurisdiction in dower is modified, so that when dower can be assigned by metes and bounds, it may be done by the court of probate, otherwise not ; especially if it be assignable in lands alienated by the husband in his life- time, the wife not relinquishing her right. (/r) In Tennessee lands may be sold by order of the probate court for purposes of partition, but the jurisdiction extends no further than making a complete sale. If any matters of dispute arise afterwards, or if any equitable claims exist at the time, these are cognizable alone in a court of equity. (a;) In Mississippi, under the statute of 1833, and prior stat- utes, the court of probate can only entertain a suit for parti- tion when lands are to be immediately divided among heirs of the intestate, or in case of the death of one joint tenant, tenant in common, or coj)arcener, and the descent of his share. (?/) § 282. A court of probate usually has power to order the sale of lands for the payment of decedent's debts, when the jiersonal property of the estate is -not sufficient for that pur- pose. It may, also, by statute, sell the land of an infant, and invest the proceeds according to discretion, as to the best interests of the ward.(~) But it has been held, in New .Jer- sey, that it cannot do so except in the case of minor orphans, and hence not on the application of a guardian by nature (/)Guil(lford v. Madden, 4.^ Ala. and Perkins v. Fairfield, 11 Mass. 2SI1. 227. (y)Mc'\Villie v. Van Vacter, 35 (ic)Snodgrass e. Clark, 44 Ala. Miss. 44.5. 190. (»')Bent V. Weeks, 44 Me. 47. See, (./'iBond v. Clay, 2 Head. :Mi*. also, Leavitt v. Harris, 7 Mass. 292, (,y)Sniith v. Craig, 10 S. & M. 447. (2)Stiles V. Beeman, 1 Lans. (N. Y.) 96. PROBATE. 295 to sell lands for the support of his minor children not orphans, (a) In Pennsylvania it is held that the sale of lands to pay the debts of a deceased partner, under order of the orphans' court, only passes his interests, although the legal title may have been wholly in him.(/>) In Missouri the court of probate has authority to order the private sale of a minor's lands ; but the matter is appeal- able to the circuit court. (c) In Alabama a decree of insolvency may be connected with a decree to sell lands for the payment of debts of an intes- tate; and the proceedings to declare an estate insolvent are in rcm.(d) A decree for the sale of decedent's lands cannot be attacked collaterally. (^) In Mississippi it is held, and I suppose it is the rule everywhere, that the term "debt" does not include com- missions of the administrator, and that a sale of lands can- not be ordered for the payment of such commissions. (/) Where a court of probate vacates a sale previously made by an executor or administrator, under an order, it has no jurisdiction to determine the rights and equities of the pur- chaser consequent upon the order of vacation. This must be left to a court of equity, (f/) In Pennsylvania it is held that a court of probate has power to set aside a discretionary sale, and order a resale by executors under a will, on sufficient cause shown, and can also grant authority to a trustee, when necessary, to bid at his own sale ; although this is declared to be a delicate power, and one to be cautiously exercised, (/t) An order of confirmation can be opened up for the purpose of correcting errors therein, provided the application for it be made in apt time, and under proper circumstances, (i) And, («)Graham e. Houghtiilin, ;J() N. (/jlfollman «. Bennett, 44 Miss. J. (1 Vroom,) 557. 322. (6)McCormick's Appeal, 57 Pa. (r/)Ei(.-hell)erger «. JIawlIiorne, 33 St. 54. Mtl. 596. (c)McVey v. McVey, 51 Mo. 418. (A)I)unclas' Appeal, 64 Pa. St. 332. (rf)Hlne ». llussey, 45 Ala. 513. (/)Mcintgomery v. Williamson, 37 (e)Collin8 v. Johnson, Ibid, .548. Md. 429. 206 PROBATE. likewise, an order of sale may be vacated at any time, if for any reason it is void;(j) or, perhaps, merely voidable. § 283. In some states, where the income from an orphan's estate will not support him, a court has power to bind him out.(A-) § 284. A probate court has no authority to order the sale of a homestead to pay debts, even under a valid lien thereon. (Z) This would subvert the very meaning of all homestead statutes, which is to provide a residence for the family of a deceased person, and if valid liens were created before the death of the head of the family, they must be enforced in another court than the court of probate, which has no power to enforce or cancel a mortgage or other real estate lien.(??i) § 285. In Alabama a court of probate may determine the validity or invalidity of bequests, although the power does not extend to trusts created by will, nor to litigation between the executor, as trustee, and the cestui que trust. (n) And under this power it may decide whether a bequest to charitable uses, vested in the executor as trustee, is valid or not, and whethfer it has lapsed. (o) Testamentary trusts, however, as such, are usuallj'- outside the jurisdiction of a probate court; trusts belonging specially and peculiarly to the province of chancery jurisdiction, as also any controversy between a trustee and the cestui que trust in regard to the settlement of accounts. (/)) In Penn- sylvania the orphans' court has concurrent jurisdiction there- in. (5) § 286. Partnership accounts between a deceased and sur- viving partner are not within the purview of j^robate jurisdic- tion,(r) except given directly by statute, as in Illinois. § 287. In Missouri it has been held that a court of probate has no jurisdiction to hear or decide a set-off presented by an (j).T()linson v. Adm'r, 40 Ala. 247. (o)Jolmson's Adm'r v. Longuiue, (/•)3Iitchell V. ilitcliell, G7 N. C. 39 Ala. 143. 307. (p)Parsons v. Lyman, 5 Blatch. (/)OiT's Estate, 29 Cal. 101. C. C. 170. (//(iGillilaiul?'. Adm'r, 2 0. St. 223. (g) Brown's Appeal, 12 Pa. St. 333. (/tjHarrison v. Harrison, 9 Ala. (r)Xelson v. Green, 22 Ark. 547; 470. Booth V. Todd, 8 Tex. 137. PROBATE. 297 administrator against a claim exhibited for allowance by a creditor, if tlie set-off exceeds the amount of the demand, (s) § 288. In Alabama it is held that an orphans' coiu't has no jurisdiction of personal property which at the time of the testator's death was at his domicile in another state, but after- wards removed into that state. (i) On the other hand, in Louisiana, if minors remove to another state after the death of a guardian, and there a guardian is duly appointed for them, the appointment will not be recognized as to property in that state. In order to obtain it the non-resident guardian must be re-appointed where the property is situated, (?() which is probably a general rule elsewhere. § 289. A court of probate has no control of the doings of an executor or administrator in another court, as to prohibit him from contesting the payment of promissory notes given by the testator or intestate, sued on in a court of law, or restrain him from prosecuting a bill of discovery in chancery for the purpose of ascertaining the consideration of such notes, (r) 5? 200. In New York it is held that if a will purport on its face to devise land situated in the county, it may be admitted to probate without trying an issue as to the testator's real own- ership of the lands ; which, indeed, is the general rule, doubt- less, (z^-) ^ 291. In Pennsylvania courts of probate are endowed with a limited jurisdiction as to the specific performance of the contracts of the deceased; and, also, in rescinding the decree for specific performance thereof, (.c) It may enforce the decree, also, by attachment. 0/) And may entertain entire jurisdic- tion, provided there is no fact to be determined properly by a jury,(,'') and against a vendee in favor of an executor not empowered by a will to sell (a) («)Dunnico «. Adm'r, 15 Mo. .'iSS. (a;)Weyand «. Wellcr, 39 Pa. (^)Varner v. Bevil, ]7 Ala. 2.Sfi. 448. (w)Pray v. Herber, 19 La. An. 499. (.?/)Cliess' Appeal, 4 Barr, r>2. («)Pariier's Case, 2 Barb. Cli. (N. (£)Cobh's Ex'r v. Burns, Gl Pa. y.) 154. St. 278. (w)Vreeland v. McClelland, 1 (a)Bell's Appeal, 71 Pa. St. 465. Bradf. 415. 298 PROBATE. The jurisdiction obtains, also, in Indiana, (t) And in Texas,. in sales of land under an executor}^ contract of the decedent, (c) and to this the jurisdiction is confined. (<:?) ^ 292. A limited jurisdiction in matters of fraud is essen- tial, for "if a court of probate must pass upon matters involv- ing questions of fact, as it often must, in deciding upon mat- ters of account, it must inquire into the truth of such facts judicially ; and when a question of fraud is incidental to any subject of which it has jurisdiction, it must take cognizance of it, and try it as any other question of fact. "(c) And where fraud is inherent in an executor's or administrator's account, the court of probate has exclusive jurisdiction therein as an incident of the settlement. (/) § 293. Probate courts, as other courts, may have power to order a change of venue in a proper case.(5^) § 294. The ordinary principles of limitation apply to ad- ministrators and executors, (/i) § 295. A probate court has no authority to cite the admin- istrator of an administrator to settle the account of his intes- tate with the estate of which he had been the administra- tor, (f) § 296, Eents for real estate accruing after the decedent's death are not a part of the assets of the estate, and so form no basis of administration. (j) § 297. The issuing of habeas corpus writs is not within the province of a court of probate, (A:) so that it has no power to take cognizance of proceedings by a father to recover posses- sion of a child alleged to be wrongfully withheld from him.(Z) § 298. A court of probate may enforce its orders to an exe- cutor or administrator by attachment for disobedience, (m) but in New York cannot punish as for a criminal contempt, (w) (5)Deh:irt v. Dehart, 15 Ind. 167. (i)Bush v. Lindsey, 4A Cal. 121. (cjTodd V. Ca dwell, 10 Tex. 236. (j)KoIilev v. Kuapp, 1 Bradf. (N. (rf)Boolh V. Todd, 8 Tex. 137. Y.) 242. (c)Wade v. Lobdell, 4 Cush. 512. (A)Lee's Case, 1 Min. 60. (/)Sever v. Russell, Ibid, 517. (OLowrey t?. Holden, 41 Miss. 410. ((7)People t). Almy, 46 Cal. 245. (/»)Saltus v. Saltus, 2 Lans. (N. (7i;)Emerson D.Thompson, 16 Mass. Y.) 9. 428. (7i)Watson's Case, 3 Lans. 408. PROBATE. 29{> and so cannot fine, and then imprison on the fine.(o) How- ever, it is different in Pennsylvania, Illinois and Missouri, where a recalcitrant executor or administrator may be impris- oned for contempt. (^) § 299. As an incident of the supervision of courts of pro- bate over estates, their jurisdiction is exclusive in matters of settlement and distribution, (strictly such,) including the claims of creditors next of kin and legatees, (5) and also, per consequei/ce, of the plea of an administrator that he had fully administered, (r) And a final decree of a probate court making distri])ution of an entire estate is, unless reversed or modified by an appeal, an investiture in the distributees of the absolute right and title thereto, insomuch that, while an appeal is pending from such decree, if the court makes another order making a different distribution in jDart, the lat- ter order is wholly void.(.s) And a court has jurisdiction to examine and allow a final account rendered by an administrator after his letters have been revoked, (i) And it is a general principle that it can only be deprived of its jurisdiction for settlement by some process which would remove the cause to another tribunal; as, for instance, appeal. And the jurisdiction thereon re- mains, even if the administrator, on citation, had neglected to settle his accounts, and leave had been granted to sue on his bond for the neglect, provided no suit be actuall}^ com- menced. (?/) If there be a partial settlement with, an heir, and therein a sum of money be left in the hands of the executor to pay an illegal legacy, the probate court has jurisdiction to com- pel a distribution of that sum as assets. (r) And it is a gen- eral principle that on an accounting the jurisdiction extends (r>)Sinie, ;') Lans. 466. (/•)Bind's Ex'ro. Adm r, 2 Grunt, ( p)Tome's Appeal, r.o Pa. St. 2!t7 ; 3-53. Piggott V. Riimey, J tScain. 146; (.s)Garnind's Estate, 36 Cal. 277. Greene Co. «. Uo.se, .38 Mo. 301. (/) Davis v. Clieves, 32 Miss. 317. (6 Pa. (//)Sturtevant «. Tallmau, 27 Me. St. 166. 82. («)\Vells V. .Mitciiell, 3'.t Miss. 801. 300 PBOBATB. usually to the trial and decision of every question necessary to a settlement. The legatees may contend that the execu- tor has more assets than he acknowledges, and, on the other hand, he may show in defence that what is claimed as assets is his own property, and not that of the estate. (/r) And the correctness of an inventory may thus be disputed likewise. (a;) However, the jurisdiction of the court is exhausted when the order of distribution is made, and cannot extend to enforcing the collection of the amounts, (y) The distribution may be in kind, and even where there are minors. (^) A settlement may be opened and reviewed on sufficient cause shown, even if it be a final settlement, provided it was made in proper form, with due jurisdic'tion.(a) § 300. There are, however, distinct limitations to the juris- diction in matters of settlement and distribution. As, for instance, an administrator cannot be allowed to set off a debt due him from a distributee ;(i) nor, in Alabama, be allowed his attorney's fees;(c) nor appropriate a distributee's share to the payment of his dehts,(d) except a debt due directly to the estate, which may be treated as an advancement ;(e) nor adjudicate upon the validity of an assignment of a distributive share ;(/) nor refuse a distributee his share on the ground that he has made such an assingment;((/) or, consequently, entertain a petition to enforce an alleged assignment ;(/?) nor, after the death of an admhiistrator, to enforce against his personal representative a decree rendered against the admin- istrator on final settlement ;(i) nor decide upon the validity of a bequest. (J) (w)Merchant «. Merchant, 2 Brad. (c) Wright's Adm'r v. "Wilkinson, ) § 305. In regard to the statutory jurisdiction of the United States courts I avail m^'self of the very comprehensive sum- mary of Mr. Wharton, namely: "The offences thus particu- larly enumerated by congress may be collected under five general heads : First, those against the laws of nations ; s) so held in New Hampshire. But the doctrine is justly repudiated in Connecticut, (c) and I doul)t whether it is the general rule. And assuredly it is not the rule where the statute abolishes the distinction between principal and accessory, and makes all participants in felony principals. § 314. There is an apj^arent but not a real exception to (ajState v. Moore, 6 Fost. (N. H.) (A) I hid, 4",'). 451. (tjStute V. Grady, 34 Conn. 1.31. V.l— 21 322 CRIMES. this rule in the matter of illegal voting, done by those who by special law are allowed to vote beyond the limits of the state. I say not real, because the act has a direct bearing upon the affairs of the state; indeed, has its immediate effect in the state, and there only ; and so the matter falls within the operation of the general principle. In regard to statutes allowing such voting (in 1862) among the soldiers, the court of Wisconsin said: "This class of legislation has been univer- sally recognized as valid, for the reason that, although it au- thorizes acts to be done outside of the country where it is enacted, and specifies in what manner they may be done, still the acts themselves relate to the internal affairs of the state over which it has acknowledged jurisdiction, and has no tend- ency to interfere with the sovereignty of other states in which they may be performed. The act authorized by the law in question seems to be jDurely of this character. It is the ex- pression of the will of an elector of this state in regard to an office to be held and exercised here. It is an act that relates as entirely to the internal concerns of this state, and is as free from all tendency to interfere with the sovereignty or jurisdiction of any other state where the ballots might happen to be cast, as are any of the acts authorized by the legislature just referred to. This state has the acknowledged power of providing in what manner title to the soil here may be trans- ferred. It provides a mode by which it may be done in other states, and if so done the transfer is valid. It has equal authority to provide the mode in which the elector shall cast his ]>allot. It provides that he may do it in another state. If so done, why is the act not equally valid with the other? I can see no distinction in principle between them, so far as it relates to the power of the state to authorize them to be done outside of its territorial jurisdiction ; or, rather, if there is any distinction it is in favor of the law authorizing the ballot, for that is a matter entirely between the state and its own citi- zens. ******* It may not only pass permis- sive laws in respect to them when beyond its limits, but also laws which are binding and obligatory upon them everywhere, and for the violation of which they may be punished when- CHIMES. 823 ever the state can find them within its jurisdiction. * * * * * * It seems to be well established that every nation has the right to punish its own citizens for the violation of its laws, wherever committed. This right is based upon the duty of allegiance, and it does not rest upon the assump- tion that one state can extend its laws into another so as to make them directly operative there, or impose any obligation on such other state to observe them, or give any effect to them, but merely that they may be personally binding upon the citizen of the state which enacts them, and justify his punish- ment for their violation by such state when he returns within its limits. ***** j ^m unable to say, therefore, that the provisions of this law providing for the punishment of illegal voting under it might not be enforced against the citizens of this state who should violate it abroad, if they should afterwards be found here."(d) § 315. The doctrine, recognized in the above quotation, of the responsibility of citizens for acts done abroad, a responsibility resting upon their allegiance, is quite generally recognized as a reasonable safeguard. Yet it is, of course, subject to the qualification that the laws in regard to such acts can only be enforced, or have operation, within the jurisdiction enacting them, and not within the foreign juris- diction where the acts were committed, any further than to the very limited extent defined by the comitate gentinm.{e) The principle is thus stated : "Although the laws of a nation [or state] have no direct binding force, or effect, except uj)on persons within its own territories, yet every nation has a right to bind its own subjects, by its own laws, in every other place, "(/) subject to the limitation just stated, as to the exe- cution of those laws. § 310. This matter has been set forth very clearly by Christiancy, J., in a separate opinion, given in a Michigan case, wherein he says: "It is well settled, as a general prin- ciple, that the laws of no nation have any extra-territorial (d)State ex rel. v. Main, 16 Wis. (<^)Story's Confl. of Laws, ^ 640, 413-422, passim. 22. (/)Ibid, i 21 321 CKIMES. force ; that criminal laws, especially, cannot operate beyond the territorial limits of the government by which they are enacted. From this principle, mainly, but not entirely, results another general princij^le, that to give any govern- ment, or its judicial tribunals, the right to punish any act, or transaction, as a crime, the act must have been committed, or tiie transaction must have occurred, within its territorial limits. Hence, by the common law, which, in this respect, has always been acted upon in the United States, criminal offences are considered as entirely local. Story Confl. Laws, § 620. But the general principle, that the laws of a country cannot render an act criminal when committed beyond its limits, is subject to some qualifications, or exceptions. Thus, every sovereignty has the right, subject to certain restric- tions, to protect itself from, and to punish as crimes, certain acts which are peculiarly injurious to its rights, or interests, or those of its citizens, wJierever conimitted — at least, if com- mitted by a citizen or subject of such sovereignty; and, unless calculated to injure the sovereignty, or its citizens, no gov- ernment can have any legitimate right to punish offences committed within or without its limits. Most crimes are brought within this princij^le, and become injurious only by reason of being committed within such limits. In general, they have this effect only when so committed. But when committed within the territory they must always have this effect to a greater or less extent, as they tend to endanger the peace and good order of the community, or the prop- erty, interests, or lives of its citizens, to obstruct the laws, or to bring them into contempt, if not enforced. Hence, also, it becomes the duty of every government to repress crimes within its own dominions. But, though crimes in general thus become injurious to the sovereignty only when committed within its territories, there are exceptional cases, standing upon peculiar grounds, as already intimated. Thus (without attempting to enumerate all) the citizen may com- mit treason by acts or combinations abroad; the commerce of a nation may be injured, or its pacific relations with other governments endangered, by the criminal conduct of the crews I CRIMES. 325 or passengers of its ships in foreign ports. In such cases, the offender may be punished by the government of which he is a citizen, with this qualification, that he be afterwards found within the territory or jurisdiction of the latter, or be brought there without a violation of the rights of the sover- eignty within which the act was committed; for he cannot be arrested there without the consent of the latter. "(^) This doctrine is assented to, I believe, by all civilized nations, and thus may be said to have a permanent place in international law. § 317. Upon the general principle that acts committed within the jurisdiction are subject to the jurisdiction, one who perpetrates an offence within a state, by means of an agent, or letter, or other means, is punishable, though he himself did not enter the jurisdiction to perform the act. Sometimes, however, where the distinction prevails of princi- pal and accessory — as in felonies — one procuring an act to be done elsewhere is considered an accessory before the fact, and his crime is held to be completed where his plan was set on foot, so that he is only responsible within that jurisdic- tion. But as, in misdemeanors, there are no accessories, (and also where a statute abolishes the distinction in felonies,) the rule is different therein. Also, where the distinction prevails, it is usually held that one is a principal who employs an in- nocent agent — as, for example, one to administer poison who does not know that the drug is poisonous; but an accessory only, where he employs an intelligent agent, as actor, who is aware of the nature of the transaction; and then the latter is the principal. Thus the matter is stated by the New Jersey court : "The rule, therefore, appears to be firmly established, and upon very satisfactory grounds, that where the crime is committed by a person absent from the country in which the act is done, through the means of a merely material agency, or by a sen- tient agent, who is innocent, in such cases the offender is punishable where the act is done. The law implies a con- structive presence from the necessity of the case ; otherwise ((/)People v. Tyler, 7 Midi. 221. 326 CRIMES. the anomaly wonltl exist of a crime, but no responsible crimi- nal. ******* If, then, the accessory, by the common law, was answerable only in the county in which he enticed the principal, and that, too, when the criminal act was consummated in the same county, it would seem to fol- low, necessarily, in the absence of all statutory provision, that he is wholly dispunishable when the enticement to the commission of the offence lias taken place out of the state in which the felony has been perpetrated. Under such a con- dition of affairs it is not eas}' to see how the accessory has brought himself within the reach of the laws of the offended state. His off'ence consists in the enticement to commit the crime; and that enticement, and all parts of it, took place in a foreign jurisdiction. As the instrumentality employed was a conscious, guilty agent, with free will to act, or to refrain from acting, there is no room for the doctrine of a construct- ive presence in the procurer. "(/<) Thus, in the misdemeanor of defrauding by false pretences* it is held that the offence is committed where the false pre- tences are successfully used, and thus take effect, even where the fraud originated and was continued in another state. (i) If one fires a gun across a boundary, and kills a man in another state, the crime is committed in the latter, where the shot took effect. (./) Where a child, an idiot, or a madman, is induced to commit a felonious act, the principal is punishable for the act, although not present at its commission. And so, if one procures an innocent boy to pass a counterfeit note.(/v) And the principle on which this is based is the maxim of the com- mon law itself. Qui facit per aVtum, facit per se, which has been declared by the Connecticut court to be of "universal application, both in criminal and civil cases;" so that "he who does an act in this state, by his agent, is considered as if he had done it in his own proper person." (Z) And so the (A)State V. Wyckott", 2 Vroom, (N. ( j)United States v. Davis, 2 Siimn. J.) 68, 69, passim.. 485. («)People V. Adams, 3 Deuio, (N. (A;) Common wealth v. Hill, 11 T.) WO. Mass. 136. {?)Baihamstead v. Parsons, 3 Conn.* 8. CRIMES. 327 supreme court of New York say : "True, the defendant was not personally within this state, but he was here in purpose and design, and acted by his authorized agents. Qmfacit per alium, facit per se. The agents employed were innocent, and he alone was guilty. An offence was thus committed, and there must have been a guilty offender; for it would be some- what worse than absurd to hold that any act would be a crime if no one was criminal. Here the crime was perpetrated within this state, and over that our courts have an undoubted jurisdiction. This necessarily gives them jurisdiction over the criminal. Crimen trahit personam. "For all civil purposes a person out of this state may act by procuration within its limits, and thus, although absent at the time, he may become subject to the state law. Eights may thus be acquired by the absent party, as he may also become civilly liable under the laws of this state for what is done here by his authorization and procurement. The indi- vidual remed}', in such case, is perfect ; and if the criminal law of the state is thus violated, why should not the absent offender be responsible criminally when afterwards found within the state? In authorizing another to act for him, the principal so far voluntarily submits himself to the law of the place where the authorized act is to be performed. This is confessedly so, for all civil purposes. If an act thus author- ized results in wrong to an individual, his right to redress against the principal, though absent, is undoubted. As to the person injured, the local law was violated by the absent wrong-doer ; and if the act done was also a violation of the local criminal law, is the author and procurer of the deed guiltless? Does the law hold him to have been within its jurisdiction so far as respects the civil remedy, but not for the purpose of punishment, "(w) Where the statute makes the crime of the accessory before the fact a substantive felony, — thus, in effect, making him a principal, — he can be punished where the principal act con- stituting the crime was committed, even if the crime is made the subject of separate prosecution and punishment instead (m)People v. Adams, 3Doiiio, 210. 328 CRIMES. of being inclndetl in an indictment with the principal offence ; this provision not changing the definition, the facts and cir- cumstances, or the proof. (/<) In matters of libel, the crime is held to be committed where the paper containing it is actually received and circu- lated, (o) And this is on the general principle above stated, the act being performed by a material agency. (/^) § ?>18. According to Mr. Wharton, the principle involved in the case of People v. White, 1 Taylor, (N. C.) 65, does not always apply to a foreign jurisdiction; for if one establishes a manufactory within the boundaries of Mexico, for example, to forge United States securities, he holds that he may be punished, if arrested, in the United States. But he gives some peculiar grounds for this, it will be observed, namely: "Because, first, in countries of such imperfect civilization penal justice is uncertain ; second, because Mexico holds that we have jurisdiction, and that therefore she will not exert it; third, becau-e, in cases where, in such countries, the local community gains greatly by the fraud, and suffers by it no loss, the chances of conviction and punishment would be pe- culiarly slight; and, fourth, because all that the offender would have to do, to escape justice in such a case, would be to walk over the boundary line into the United States, where, on this hypothesis, he would go free." He adds: '"In political offences there is this farther consideration, that it is now an accepted doctrine of international law that no government will punish a refugee for treason against his sovereign, and hence a government, on the hypothesis here disputed, would have no redress for offences directed abroad by refugees against its sovereignty, even though the offenders were its own subjects, and should, after the commission of the offence, return to its soil."(. State, 12 Mo. 453. (/ylSimmons v. Comnidinvcallh, fj f.f)State •«. Williams, :J3 Mo. 229. Jiinn (J 17. 384 CRIMES. the fact. Book 2, c. 9, § 12. No book holds that such an act merges the original offence, or renders it imputable to the nation alone. The only exception lies in the case of crime committed by an ambassador, not because he is guiltless, but by reason of the necessity that he should be privileged, and the extra-territorial character which the law of nations has therefore attached to his person. Hence, say the books, he can be proceeded against, not otherwise than by a complaint to his own nation, which will make itself a party to his crime if it refuse either to pnnish him by its authority, or to deliver him up to be punished by the offended nation. Ruth, book 2, c. 9, § 20. Independently of this exception, therefore, Ruther- ford insists, with entire accurac}-, that 'as far as we concur in what another man does, so far the act is our own; and the effects of it are chargeable upon us, as well as uj)on him.' Ruth, book 1, c. 17, § 6. A nation is but a moral entity, and, in the nature of things, can no more wipe out the offence of another, by adopting it, than could a natural person. And the learned writer just cited accordingly treats both cases as standing on the same principle. Book 2, c. 9. § 12. 'Noth- ing is more usual,' says Puffendorf, 'than that every partic- ular accomplice in a crime be made to suffer all that the law inflicts.' Book 3, c. 1, § 5. Vattel says of such a case, (book 2, c. 6, § 75:) 'If the oft'ended state has the offender in her power she may, without scruple, punish him.' Again, if he have escaped and returned to his own country she may apply for justice to his sovereign, who ought, under some circum- stances, to deliver him up. Id. § 76. Again, he sa3'S, she may take satisfaction for the offence herself, when she meets with the delinquent within her own territory. Book 4, c. 4, § 52. I before cit-ed two instances in which positive orders by his sovereign, to commit a crime, are distinctly held to render both the nation and subject obnoxious to punishment. Vattel, book 3, c. 2, § 15. Same, book 1, c. 6, § 75. Vide, also, 1 Burrill, part 2, c. 1, § 10. "Was it ever suggested by any one, before the case of McLeod arose, that approval by monarchs should oust civil jurisdiction, or even so much as mitigate the criminal offence ? CRIMES. 836 TSTay, that the coalition of great power with great crime does not render it more dangerous, and, therefore, more worthy of punishment under every law by which the perpetrator can be reached ?"(/t) § 322. As to the obligation of extradition of criminals there has been a decided conflict, even among the most emi- nent jurists. But the weight of authority is, doubtless, that it is a matter of comity and of treaty. Whatever obligations may be supposed to exist relate only to such crimes as are universally recognized by the law of nations, and which, therefore, are punishable in all. But it has been stoutly con- tended, by eminent men, that no obligations exist any where ■except by virtue of treaties specially providing for the extra- dition of accused persons. And especially is it held that, independent of treaty, a surrender cannot rightfully be made to a state where a fair trial cannot be had in the demanding country; as, where a surrender would expose the fugitive to a barbarous punishment, revolting to a civilized jurisprudence; and the surrendering country may even impose conditions as to the way in which the fugitive shall be tried. And further, -even under treaty, a fugitive will not be surrendered where ihe demanding country proposes to subject him to a punish- ment in an oppressive trial, not within the contemplation of the parties when the treaty was adopted. Nor, in general, ought there ever to be any extradition, by treaty or other- wise, for mere political offences, on account of the usual want of moderation which characterizes the punishment of such offences, and especially on account of the fact that what con- stitutes treason is so variously defined in different coun- tries, (i) And even between the different states of the Union it is held that, if there is not to be a fair trial in the demand- ing state, extradition may be properly refused. And on this ground, it seems, Judge Blatchford, in New York, in the year 1873, refused to grant a warrant to surrender Charles A. Dana to the authorities of the •istrict of Columbia, because (i)People V. McLeod, 25 Wead. (i)Whart. Crim. Law, H 2956-7. 3, lOG ni2 BANKRUPTCY. altliongii living out of the district. And jurisdiction thus attaching by a vohmtary appearance cannot subsequently be withdrawn. (^) § 327. The jurisdiction is not only exclusive, but proceed- ings thereby transfer, on due notice, all pending suits in other courts to the supervision of the bankrupt court, inso- much that the assignee, when appointed, is to be substituted therein to conduct the suits as a party. The interference, however, only extends so far as is necessary for the efficient exercise of the bankruptcy jurisdiction, in the disposition of the bankrupt's assets. (c) And if the proceedings in other courts are directly in violation of the bankrupt law, there is the power of direct interference, according to most authori- ties, although the doctrine has not obtained universal acquies- cence. ((/) § 328. When an assignee has been appointed, he may sue and defend in courts, much as an ordinary party may. And so, an assignee may come into a state court to set aside a mortgage executed in fraud of tlie bankrupt law, since a state court may aid in carrying out the provisions of the bankrupt law. Iscft V. Stuart, 80 111. 404 : Ward v. Jenkins, 10 Met. 583; Stevens v. Savings Bank, 101 Mass. 109 ; Forbes v. Howe, 102 Mass. 428; Hastings v. Fowler, 2 Carter, (Ind.) 216; Brown V. Hall, 7 Bush, t>0; .V((//,s' v. Maniif. Nat. Bank, 64 Pa. 74; Cook v. Whipple, 55 N. Y. 160; Cogdell v. Exuni, 69 N. C. 465; Whiteridge v. Taylor, QQ N. C. 273; and circuit court of United States for North Carolina district, in State of X. C. V. Universitff, 65 N. C. 714, (appendix.) Contra: Brig- ham V. Claflin, 31 Wis. ♦;07; Voorhes v. Frishee, 25 Mich. 476 — on the ground that a state court cannot lawfully assume juris- diction under the laws of the United States. The courts in the majority, however, sustain the jurisdiction merel}' on the ordinary basis of jurisdiction, with the assignee as a party. § 329. The effect of the bankrupt law upon the insolvent laws of the states is to suspend their operation while the bankrupt law continues in force. fA)HumponBankraptcy,(5thEd.) (f)Ibvd, 174. 1'^-: 17:3.- () However, jurisdiction to foreclose a mortgage is not included in the summary powers conferred upon the court by the stat- ute, (c) but this must be by regular suit, under the dictation of the court. ((Z) The summary jurisdiction is adequate where, under a lien, it only remains to ascertain 'and liquidate it.(e) The bankruptcy court mav^ enjoin a foreclosure suit com- menced in a state court after the adjudication is made and the assets assigned, (/) the injunction not resting directly on the state court, but on the parties, (r/) But this power is most vigorously denied in New York,(/t) in direct opposition to the claim of the district courts, that their jurisdiction is exclusive over the bankrupt's estate, (/■/)People"s Steamship Co. 's Case, (/)Iverosene Oil Co.'s Case, 6 3 Ben. 22G. Blatch. 523. (/!/)Sacchi's Case, 10 Blatch. 31. {,9)Kellog2; v. Kus.-^ell, 11 Blatch. . (r)Casey'.s Case, Id. 3j^2. 524, foot 7iofe. (r/)Iron Mountain Co.'.s Case, 9 (7i) Clark «. Bininger, 38 How. Pr. Blatch. 320. 341. {f)Clark's Case, 9 Blatch. 37G. BANKRUPTCY. 349 wherever found, and whatever may be the proceedinos of state courts in relation to them, and notwithstanding the jurisdiction of the state court may first have attached. (i) Yet the state courts may properly entertain suits, either by or against the assignees, in the common order of proceed- ings, (,/) and even for the collection of assets, etc. § 331). There may be such a thing as conflict of jurisdic- tion between two district courts ; as, for example, where there is a bankrupt corporation in two districts, such as a railroad company operating its road through both. The rule in such cases, however, is the usual rule of concurrent jurisdiction, namely, the court whose action is first invoked should enter- tain the case.(/i) And it is held, in the northern district of Illinois, that where one has a maritime lien he may, even after the filing of a petition in voluntary bankruptcy by the owner, seize the vessel under a libel in another district ; and that the court in the latter district can hear and determine the lien, and the bankru^Dtcy court should accept the determination of the court as to the validity and amount of the lien. (7) § 340. A state court is the proper tribunal to have juris- diction of an accounting between the members of a bank- rupt firm ; and their rights, as regards each other, will not be adjudicated as the out-branch of a proceeding in bank- ruptcy. (?/t) And where a receiver is previously appointed by a state court, the bankruptcy court will not remove him. And in a case where an application of the kind was made, the court refused it, and said: "Prior to the commencement of the proceedings in bankruptcy the action in the state court was brought, and one of the two receivers was appointed by that court, and such receiver had taken possession of the property in question. The property is still in his possession, and in that of his co-receiver, and the application to this court is that, under these circumsta]ices, the court will sum- (j)Merchiints' Ins. Co.'s Case, 3 (/)15o.ston, etc., 11. Co.'.s Case, 9 Biss. 1G5. Blatcli. 109, 400. (j)iXvsf)n t). Diet/, ] Dill. 50(). (^Tlie Ironsides, 4 Bi.ss. .019. (///)!. :!tlii(ii)"s Case, .') Hen '^02. ■S50 BANKRUPTCY. niarily declare such jiroperty to have so been the property of the bankrupt at the time of the commencement of the pro- -ceedings in bankruptcy, and to have so passed to the assignee, by the assignment in bankruptcy to him, as to warrant this court in directing the maishal to forcibly dispossess the receivers, and take the property and put it into the hands of the assignee. The jurisdiction of the state court over the sub- ject-matter of the suit therein, and over the parties thereto, when it was instituted, and the receiver was appointed, and its jurisdiction to appoint such receiver, are, in no manner, impeaclied or questioned. It is only claimed that, by reason of subsequently transpiring events, this court shall decide that the state court ought to, and shall, by compulsion from this court, be made to give up possession of the propert}' without its being shown that such possession of the property by the state court can be properly adjudged by this court to be void, or invalid, by reason of provisions of the bankrupt act. It would seem to be only necessary to state these propositions to reacii the conclusion that this court cannot grant the par- ticular relief asked. The questions involved were considered by this court in the Case of Vojel, 7 Blatch. 18. When property is lawfully placed in the custody of a receiver, by the court which appoints such receiver, it is in the custody, and under the j)rotection and control, of such court, for the time being, and no other court has a right to interfere with such possession, unless it be some court which has a direct supervisor}^ control over the court whose j)rocess has first taken possession, or some superior jurisdiction in the prem- ises. Peck Y.Jenness, 7 How. 012, 625; WilUams v. Benedict, 8 Id. 107, 112; WisivaU Y.Sampson, 14 Id. 52, 66; Peak v. Phipps, Id. 368, 374; Taylor v. Carrijl, 20 Id. 583, 594-597; Freeman v. Howe, 24 Id. 450; Buck v. Colhath, 3 Wall. 334. In the present posture of this case it does not appear that this court has such superior jurisdiction in the premises, or such supervisory control over the state court, in respect to the property in question, so as to authorize it to take avray from the state court the possession of such property, or to enjoin the receivers from further interfering with such prov^ BANKRUPTCY. 351 -erty. This court will always be sedulous to enforce its just powers; but it will not demand from any other tribunal any- thing which it would not itself be willing to concede, under like circumstances. In the case referred to, of In re Vo(jel, it compelled the restitution to an assignee in liankruplcy of property which had been taken away by j^rocess of a state court from the custody of this court, and its decision was afiirmed by the circuit court, on review. The principle on which restitution was enforced would authorize the state court in the present case to compel restitution to its receivers of such property as this court should take away, b}^ force, from the custody of such state court, and this court might then retaliate ; and the confusion and endless strife would ensue which are so forcibly characterized by the supreme court in the opinion delivered in the case of Buck v. CollxitJi, before cited. "(«) § 341. If, at any time during the pendency of proceedings in involuntary bankruptcy^ the petitioiiing creditors accept payments which bring the amount below the indebtedness re- quired, namely, two hundred and fifty dollars, the suit will be dismissed for want of jurisdiction in the court, notwithstand- ing the amount was, at the institution of the proceedings, sufficient to sustain the jurisdiction. (o) § 34-2. It is held that a bankruptcy court has jurisdiction to protect the debtor from arrest, under process in a state €Ourt, on the ground of fraud, provided the debt is one from which a discharge would release him. But, on the applica- tion, the court must try the question of fact involved in the allegation of fraud, for, if the debt was really fraudulently contracted, the discharge will not release it.(;>) § 343. The summary jurisdiction of the bankruptcy court over the bankrupt's person exists no longer than until the discharge is granted ; and it cannot afterwards subject him, summarily, to an examination concerning property alleged to liave been transferred, or concealed, fraudulently; but a ple- nary suit is necessary for such i:)uri)Ose, wherein, if the l)ank- (?i)t:i:u-k &, Bininger's Cast-, 4 Ben. {o) FCfllcy's Case, ;5 Biss. 202. it?. lj))Glaser's Case, 2 Ben. 185. 852 T^ANKUUPTCY. rupt be required to make discovery, or be examined as a witness, he will receive the same privileges accorded to par- ties and witnesses, ordinarily. (^7) § 344. Where a corporation commits an act of bankruptcy^ and continues to exist at the time the petition is filed, and the papers are served, it cannot oust the jurisdiction of the bankruptcy court by securing, before the return day, a decree of dissolution. For the purposes of the proceedings it will still be regarded as undissolved, and treated accordingly. A reason given for this is, that, if such a course deprived the court of jurisdiction, "this would be to concede that the legis- lature of a state might lawfully provide by a statute, to be carried into effect l)y proceedings in its courts, that the insti- tution of proceedings in bankruptcy, and the service of an order to show cause upon its officers, should operate to dis- solve the corporation, to be followed, as a consequence, by a defeat of the jurisdiction of the bankruptcy court, "(r) And the appointment of a receiver for a corporation — for example, a fire insurance company — by a state court, is an act of bank- ruptcy, (s)* (g) Dale's Case. 11 Blatch. 499. the bankruptcy act has been re- (?)Platt V. Archer, 9 Blatch. 569. pealed, yet the general principles (s)Merchants' Ins. Co."s Case, 3 have been treated of, with regard Biss. 163. to the late law, as if it were still in *lt will be observed that although force. CLAIMS AGAINST XHi: iJAXIONAL GOVERNMENT. CHAPTEE VII. CLAIMS AGAINST THE NATIONAL GOVERNMENT. § 345. Suing a state or nation in its own courts. 346. Detinition of the jurisdiction by the statutes. 347. No equitable jurisdiction. 348. Character in which the United States are sued. 349. Not liable for torts of their officers. 350. Revenue laws not under tliis jurisdiction. 351. No jurisdiction where state a party. 352. Loyalty as a requisite of parties, and other requisites. 353. Patents not cognizable. 354. Jurisdiction only extends to judgments for money. 355. Where paymaster has had fund stolen. 356. Claims arising Under treaty. 357. Reference of claim to commission — award. 358. Salvage services. 359. Equitable jurisdiction. 360. Reference of claim by officer. 361. Indian supplies — quantum meruit. 362. Loss by adoption of new rules of inspection— jurisdiction in cases of illegal imprisonment. 363. 3G4. Military damages during rebellion. 365. Abandoned or captui-ed property. 366. Rebel cannot sue, although pardoned. 367. Liability for acts of executive officers. 368. Of prize court decisions. § 345. It has been heretofore stated, as a general principle, that a state or nation cannot, ordinarily, be sued in its own courts. But, by the establishment of the court of claims, this principle has been so far abrogated, that a new party defend- ant has been called into existence, and, when a petition is presented to tlie court, the United States occupy the position of an ordinary defendant in a suit at law. (a.) The duties of the court are not merely advisory, or its decisions recommend- atory, but its qualities are only those which properly belong (a)Todd ». United States, Dev. Ct. CI. 120. v.l— 23 354. CLAIMS AGAINST THE NATIONAL GOVERNMENT. to a court wliich can only adjudge whether its jurisdiction be Ijual or not; for, in establishing the court, congress had no intention merely to constitute a council to advise what course it would be honest and right, or expedient, to pursue, in any given case, but intended to establish a court for the investi- gation of claims, to ascertain the facts in each case, and the legal rights and liabilities therefrom arising. Nor does the court occupy the position of a jury, although, to a certain extent, it unavoidably determines questions of fact, and thus evercises the functions of a jury measurably. It is held, however, that it posseses no portion of the wide discretion which, according to some of the cases at common law, juries may often exercise. Nor is it the duty of the court to recommend to congress the passage of laws to supply any deficiency which may be supposed to exist. If a claim be alleged to be founded upon any law of con- gress, the court will construe such law, and ascertain its meaning, by means of the well-established rules of construc- tion; and so, if the claim is founded upon any regulation of an executive department, or upon a contract with the govern- ment; or if the claim be one referred to it by either house of congress, (b) § 346. The statute establishing the court, in 1855, thus defined its jurisdiction : "The said court shall hear and deter- mine all claims founded upon any law of congress, or upon any regulation of an executive department, or upon any con- tract, express or implied,* with the government of the United States, which may be suggested to it by a petition filed (^)lbid, 106, 107. or they must li.-ive received money And where a special private act witii a charge to pay it over, or the refers a particular claim, it shoiild claimant must have a lawful right not be construed to re-open claims to it when it w^as received, as in the already passed upon, but as intended case of money paid by mistake, to supply a defect of previous juris- And, as to money paid into the diction. Harvey v. U. S. 12 C. of treasury, as the proceeds of for- C 141. feited property under the confisca- *As to implied contracts, there tion act, there is no implied con- must have been some considera- tract. Knote «. U. S. 95 U. S .14!). tion moving to the United States, CLAIMS AGAINST TIIK NATIONAL GOVERNMENT. 355 tlicvcin; find, also, all claims which may be referred to said court by either bouse of congress. It shall be the duty of the claimants, in all cases, to set forth a full statement of the claim, and of the action thereon in congress, or by .anj' of the departments, if such action, has been had, specifying, also, what person or persons are owners thereof, or interested therein; and when, and upon what consideration, such per- son or persons became so interested. "(c) In ISOo another act enlarged this jurisdiction thus: "All petitions and bills praj'ing or providing for the satisfaction of private claims against the government, founded upon any law of congress, or upon any regulation of an executive depart- ment, or uj)on any contract, express or implied, with the gov- ernment of the United States, shall, unless otherwise ordered by resolution of the house in which the same were presented or introduced, be transmitted by the secretary of the senate, or clerk of the house of representatives, with all the accom- panying documents, to the court afiu'csaid. The said court, in addition to the jurisdiction now conferred by law, shall also have jurisdiction of all set-offs, counter claims, claims for damages, W'hether liquidated or unliquidated, or other demands whatsoever on the part of the government against any person making claim against the government in said court; and, upon the trial of any such cause, it shall hear and determine such claim or demand, both for and against the government and claimant; and if, upon the whole case, it finds that the claimant is indebted to the government, it shall render judg- ment to that effect, and such judgment shall be final, wdth the right to appeal, as in other cases herein provided for. Any transcript of such judgment, filed in the clerk's office of any district or circuit court of the United States, shall be entered on the records of the same, and shall ipso facto become and be a judgment of such district or circuit court, and shall be enforced in like manner as other judgments theYem."(d) Also, in the act of 18(;»4, the following restriction was im- posed: "The jurisdiction of the court of claims shall not extend to, or include, any claim against the United States (f)]}riglitly'.s Dig. 1789, 1857, p. W8. {'IjUnd, 1857, isGO, pp. 1)7, 98. 3o6 CLAIMS AGAINST THE NATIONAL GOVERNMENT. growing out of the destruction, or appropriation of, or dam- age to, property, by the army or navy, or any part of the army or navy engaged in the suppression of the rebellion, from the commencement to the close thereof. "(e) In 1803 an act was passed concerning captured and aban- doned property, excepting strictly warlike materials, provid- ing for the sales of such property, and the paj^ment of the proceeds into the national treasury, and then giving to the court of claims jurisdiction over these proceeds, namely : "Any person claiming to have been the owner of any such abandoned or captured property may, at anj^ time within two years after the suppression of the rebellion, prefer his claim to the pro- ceeds thereof to the court of claims; and on proof, to the sat- isfaction of the said court, of his ownership of said property, of his right to the proceeds thereof, and that he has never given any aid or comfort to the present rel)ellion, to receive the residue of such proceeds, after the deduction of any purchase money which may have been paid, together with the expense of transportation and sale of said j^roperty, and any other lawful expenses attending the disposition thereof, "(/) Also the following restriction was imposed, in 1863 : "The jurisdiction of the said court shall not extend to or include any claim against the government not pending in said court on the first day of December, A. D. 18(32, growing out of, or dependent on, any treaty stipulation entered into with for- eign nations, or with the Indian tribes. "((/) An extension of the jurisdiction was made in 1807, to cover quartermaster's stores furnished during tlie Morgan raid through Indiana and Ohio.(/?) § 347. It is held that the jurisdiction of the court is strictly legal, and, therefore, it cannot enforce a trust against the United States, or exercise any equitable powers whatever ; so that the holder of a military bounty land warrant cannot have a (e)Ibid, p. 99. tion assumed by the government, (/)lbid, (supp.) p. 1239. for Indian tribes, by treatj-. Lang- (g)lh\d, (supp.) p. 1159. ford «. U. S. 12 C. of C. 328. And so, the court of claims has (A) United states 6tat. at Large, no jurisdiction to enforce an obliga- (14,) p. 572, CLAIMS AGAINST THE NATIONAL GOVERNMENT. 357 legal right to claim, through that court, a compensation from the United States on the ground that the government has wrongfullj' appropriated the lands, ceded for his benefit, to other uses. The supreme court sa}-, in a case of this kind : "This claim is based on the theory that the United States has violated the trust contained in the deed of cession of the north-western territory, and is bound, in good conscience, to furnish compensation to the Virginia beneficiaries who sufl^er by this misconduct. This makes a case for the interposition of a court of equity ; and, if it were a controversy between two private suitors, it would have to be settled there, for a court of law could not afford the proper mode and measure of relief. But the court of claims has no equitable jurisdiction given it, and was not created to inquire into rights in equit}', set up by claimants against the United States. Congress did not think proper to part with the consideration of such questions, but wisely reserved to itself the power to dispose of them. Im- munity from suit is an incident of sovereignty. But the gov- ernment of the United States, in a spirit of great liberality, waived that immunity in favor of those persons who had claims ngainst it, which were founded on any law of congress, or regulation of an executive department, or upon any con- tract with it, express or implied, and gave the court of claims the power to hear and determine claims of this nature. * * * That court was authorized to enforce legal rights and obligations, but could not proceed further and judge of the equities between the citizen and his government. * * * It is only a contract autliorized by law that the court of claims can consider; and, as there is no law of congress on this subject, there is nothing on which that court could base a jud;:;raent against the United States, if, in the opinion of that tribunal, it had not fulfilled its duties toward the ben- eficiaries under the Virginia deed of cession. Tiie liability of the government, if at all, [existing,] arises out of the breach of an accepted trust, and that liability cannot be enforced at law. The claimant is in no better position because the gov- ernment is the trustee than he would be if a private person occupied that relation, and it is very clear, if such were the 358 CLAIMS AGAINST THE NATIONAL GOVERNMENT. « case, that a court of equity would alone have power to deal with him. As the government has not thought fit to allow itself to be sued in the court of claims, on equitable consid- erations, it follows that the remedy of the claimant, if any now exists, is with congress. "(i) § 34S. It is, moreover, held that a distinction is to be care- fully maintained between the United States as a sovereign^ and the United States as a contractor. In the former capac- ity the government is not amenable to any court, and in the latter capacity it holds the relation simply of an ordinary private defendant. So tlie court says, in regard to this some- what metaphjsical distinction : "In the recent case of Dcmlng V. The United States this court decided that a contract be- tween the government and an individual cannot be affected, especially by a general law. That prinei])le we now reiterate^ and extend to the case l)efore us. The ' obstructions and hindrances' complained of on the jiart of the United States were the withdrawal of the troops from the military posts in the Indian country, contrary to the terms of the Indian trea- ties, and it is insisted, 'as a matter of law,' that 'the United States could not change their attitude, or their policy, in a material degree, without incurring the responsibility of mak- ing the claimants just compensation for all additional ex- penses thereby incurred?' This position cannot be sustained. The two characters which the government possesses, as a contractor and as a sovereign, cannot be thus fused. Nor can the United States, while sued in the one character, be made liable in damages for acts done in the other. Whatever acts the government may do, be they legislative or executive, so long as they are public and general, cannot be deemed spe- cially to alter, modif}', obstruct, or violate the particular contracts into which it enters with private persons. The laws of taxes and imposts affect pre-existent executory contracts between individuals, and affect those made with the govern- ment, but only to the same extent and in the same way. In this court the United States appear simply as a contractor, and are to be held liable only in the same limits that any (i)Boimer v. United Stales, 'J \\'d\\. 50-Gl, jms^im. I CLAIMS AGAINST THE NATIONAL GOVERNMENT. 359 other defendant would be in any other court; though their sovereign acts, performed for the general good, may work injury to some private contractors, such parties gain nothing by having the United States as their defendant. Wherever the public and private acts of the government seem to com- mingle, a citizen or corporate body must, by supposition, he substituted in its place, and then the question be determined whether the action will lie against the supposed defendant. If the enactment of a law imposing duties will enable the claimant to increase the stipulated price of goods he has sold to a citizen, then it will when the United States are defend- ants, but not otherwise. If the removal of troops from a district liable to invasion will give the claimant damages for unforeseen expenses when the other party is a corporate body, then it will when the United States form a party, but not otherwise. This distinction between the public acts and private contracts of the government, not always strictly in- sisted on in the earlier days of this court, frequently misap- prehended in public bodies, and constantly lost sight of by suitors who come before us, we now desire to make so broad and distinct that hereafter the two cannot be confounded. And we repeat, as a principle apj)licable to all cases, that the United States as a contractor cannot be held liable, directly or indirectly, for the public acts of the United States as a sovereign. "(.;) § 349. Nor can the government be held liable for the torts of its officers, even though resulting in the benefit of the government. Concerning this the suj^reme court say: "It is not to be disguised that this case is an attempt, under the assumption of an implied contract, to make the government responsible for the unauthorized acts of its officer; those acts being in themselves torts. No government has ever held itself liable to individuals for the misfeasance, laches, or unau- thorized exercise of power by any of its officers and agents." In the language of Judge Story, (on x\gencies, § 319:) "It does not undertake to guaranty to any person the fidelity of any of the officers, or agents, whom it employs, since that (j)Jones V. Uoitcd SUites. JS'aU & Hunt. Ct. CI. 384. 800 CLAIMS AGAINST THE NATIONAL GOVERNMENT. would involve it, in all its operations, in endless embarrass- ments, and difficuties, and losses, which would be subversive of the public interests." U. S. v. Kirkpatrick, 9 Wheat. 720; Do.v V. Postmaster General, 1 Pet. 318; Connell v. Voorhes, 13 Ohio, 523. "The creation, by act of congress, of a court in which the United States may be sued, presents a novel feature in our jurisprudence, though the act limits the suits to claims founded on contracts, express or implied, with certain im- portant exceptions. But, in the exercise of this unaccustomed jurisdiction, the courts are embarrassed by the necessary absence of precedents and settled principles, by which the liability of the government may be determined. In a few adjudged cases, where the United States were plaintiff, the defendants have been permitted to assert demands of various kinds, by way of set-otf, and these cases may afford useful guidance where they are in point. Cases of U. S. v. Kirk- patrick, 9 Wheat. 720, and Dox v. Postmaster General, 1 Pet. 318, are of this class, and establish the principle that, even in regard to matters connected with the cause of action relied on by the United States, the government is not responsible for the laches, however gross, of its officers. Nichols v. U. S. 7 Wall. 122. "The language of the statutes which conferred jurisdiction upon the court of claims excludes, b}' the strongest implica- tion, demands against the government founded on torts. The general principle which we have already stated as applicable to all governments, forbids, on a policy imjjosed by necessit}^ that they should hold themselves liable for unauthorized wrongs inflicted by their officers on the citizen, though occur- ring while engaged in the discharge of official duties. [Yet, where a court without jurisdiction has assessed a fine, and government has taken the money therefor, an action may be brought in the court of claims to recover it back. Devlin v. U. S. 12 C. of C. 266. And so, where money is deposited with a collector of internal revenue, to be applied to a pro- posed compromise of revenue demands, against the depositor, and the pioposition of compromise is rejected by the govern- CLAIMS AGAINST THE NATIONAL GOVERNMENT. SC)1 ment, and the collector afterwards applies the money to an assessment for taxes and penalties against the depositor, and pays the money thereon into the treasury, an action may be brought in the court of claims to recover it back. Browjldon y. U.S. 12 C. of C. -331. And where money is exacted by an agent or officer of the United States, which goes into the treasury, the money can be recovered back by an action in the court of claims — the owner having a right to follow it wherever it can be traced. U. S. v. State Bank, 96 U. S. 33. And so an excess of income tax may be recovered in like man- ner. U. S. V. Kaufman, 96 U. S. 567.] "In the absence of adjudged cases determining how far the government may be responsible, on an implied assumpsit, for acts which, though unauthorized, may have been done in its interest, and of which it may have received the benefit, the apparent hardships of many such cases present strong appeals to the courts to indemnify the suffering individual at the ex- pense of the United States. These reflections admonish us to be cautious that we do not permit the decisions of this court to become an authority for the righting, in the court of claims, of all wrongs done to individuals by the officers of the general government, though they may have been committed while serving that government, and in the belief that it v.as for its interest. In such cases, where it is proper for the nation to fnrnish a remedy, congress has wisely reserved the matter for its own determination. It certainly has not con- ferred it on the court of claims. "(/c) Accordingly, where a petitioner, not professing to seek re- lief under the "abandoned or captured property act," alleged that in 1862 "the United States illegally, violently, and for- cibly took possession" of his plantation, in Louisiana, "and continued to hold possession thereof, until January, 1866, on the false and illegal pretext that the property was abandoned by the owner," it was held to fall within the principle of the Common law, "that the government cannot be sued inactions sounding in tort, nor made liable for the tortious acts of its officers," since the allegations did not raise an implied con- (A)aibbuus t). United states. 8 Wall. 274. 362 CLAIMS AGAINST THE NATIONAL GOVERNMENT. tract, but merely amounted to a declaration in trespass quart clans uin /regit against the government. Nevertheless, in that case, two of the judges dissented, on the ground that the petition alleged that the owner had never been disloyal, and had never abandoned his property, and that the United States rented it and received the proceeds — the action being thus based on this use, and not merely on the tortious seizure by the agents of the government. And the dissenting judges held that the claimant was under no obligation to aver, or prove, that the rents ever were paid over into the national treasury ; for, said they : "This is not the ground, but that the government, without any right or authority, took and used or sold his property; that the persons by w4iom it was done were the accredited officers and agents of the United States, over whom the claimant could exercise no influence or con- trol ; but who were amenable to the orders and responsible to the government alone." Again: "The law gives the aclion to the owner, because the United States, through its i^roper and legitimate officer, received the proceeds. The law gave the right to the treasury agent to receive these proceeds ; and wdien they were received by him, thoy were as much received by the United States as if they had been paid over to the treasurer of the United States and by him placed in his vault. And when they were so received by him, they were received by the United States, and all their legal liabilities followed. His property was taken from him forcibly, not voluntarily handed over. He had no right, or means, to compel the agent to perform his duty, nor call him to account for the proceeds, in any way. He could not sue the agent in any form, nor could he bring suit against any other party than the United States, and that in the court of claims. "(Z) § .350. Cases arising under the revenue laws are not imme- diately within the jurisdiction of the court of claims. This is placed, by the supreme court, upon the ground that "the prompt collection of the revenue, and its faithful application, is one of the most vital duties of government. Depending, as the gov- ernment does, on its revenue, to meet, not only its current ex- {Z)Pugli V. United States, 5 Ct. CI. 114. CLAIMS AGAINST THE NATIONAL GOVERNMENT. 3G3 penses, but to pay the interest on its debts, it is of the utmost importance that it should be collected with dispatch, and that the officers of the treasury should be able to make a reliable estimate of means in order to meet liabilities. It would be difficult to do this, if receipts from duties and internal taxes paid into the treasury were liable to be taken out of it^ or suits prosecuted in the court of claims, for alleged errors and mistakes, concerning which the officers charged with the collection and disbursement of the revenue had received no- information. Such a policy would be disastrous to the finances of the country ; for, as there is no statute of limita- tions to bar these suits, it would be impossible to tell, in advance, how much money would be required to pay the judg- ments obtained on them, and the result would be that the treasury estimates for any t-urrent year would be unrelia- ble, "(w) And, accordingly, even a set-off, by the United States, of an income tax on an officer's pay, for which the officer has sued, cannot be allowed; on the ground that congress has never assigned the collection of income taxe^ to the court of claims. (;t) Thus, where claimants, on importing iron and (m.)Xichols v. Unitctl States, 7 on a statement of facts, to have the Wall. 129. court determine the ([uestions of The principle is, that when a con- law involved. 2. Where the law de- troversy under the revenue laws is, clares a person entitled to money on by law, required to he determined doing a certain act, so that the right by other officers, or other tribunals, to it does not depend on the action there is no jurisdiction in the court of any executive otiicer, but iscom- of claims; but if the proper otticer plele upon the performance of the has acted upon a matter, and has conditions. 3. Where a claim is tiled a certificate, and thus ex- dependent on executive decision, hausted his jurisdiction, and the and this has been rendered in the treasurer has failed to carry out the party's favor. But the court has award by making payment, the not juri.'^diction, under the revenue court of claims can enforce the laws, as follows : AVhere the right payment. 11 C. of C. 65!). And of a i)arty depends on an executive so, this court has jurisdiction in acticm which has not been taken, or some cases arising under the reve- has resulted against the party, nue laws, namely: 1. Where the Campbell u. U. S. C. of C. 471*. secretary of the treasury (under (M).Iones «. United States, 4 Cl. CI. llev. St. J 1063) transmits a claim 207. which arose under the revenue laws. 3G4 CLAIMS AGAINST THE NATIONAL GOVERNMENT. steel into the United States, had paid an illegal sum of duties, which was paid into the national treasury, without protest, it was held that the court of claims had no jurisdiction to cause the excess to be refunded, on the ground of an implied prom- ise to repay money erroneously exacted, because, (1) there was no protest, as required by the act of February 26, 1845 ; (2) the payment was made and received under a mutual mis- take, and was, therefore, a voluntary mistake, and as such irrecoverable. (o) And so, the. court will not entertain juris- diction of an action brought to recover a drawback under the internal revenue act of June 80, 1864, (13 U. S. Laws, 223, § 71,) on manufactured articles exported from the United States, on which an internal revenue tax has been paid.(/)) The principle extends to''cases where goods lay in bond three years, and are then sold for non-payment of duties, and the officer takes, not the duties imposed at the time of importa- tion, but those imposed by subsequent statutes on similar goods. ((/) § 351. The court of claims hars no jurisdiction where a state is a necessary jmrty to the proceedings, nor where the govern- ment has aided the state in the wrongful diversion of the pro- ceeds of lands appropriated to a particular purpose. (?•) § 352. As to the parties who may sue in the court of claims^ we mention — (1) Loyal citizens. By the act of June 25, 1868, all claimants against the United States, who have vol- untarily resided within the seceded states during the war, must prove their loyalty affirmatively, the presumption being against them, and thus throwing the burden of proof on them. And where one comes before the court whose neigh- bors speak doubtfully of him, and whose household servants are silent when adduced as witnesses, he is at best to be re- garded as a neutral, and has no standing in the court of claims, (s) Where an administrator sues, the loyalty of the (o)Schlesinger v. United States, 1 (gjDolierty «. United States, 6 C. C. of C. 27. of C. 90. (p)Portland Co. v. United States, (r)Milwaukee, etc., Canal Co. «. 5 C. of C. 442. United States, 1 C. of C. 187. fs)Zellner v. United States, 4 0. of C. 480. CLAIMS AGAINST THE NATIONAL GOVERNMENT. 365 intestate must in like manner be satisfactorily proved. (?) It seems, however, if one, at an early period of the war, de- serted the rebel cause, and remained thereafter loyal, he has a standing in the court, (m) And where there are joint claims, and one of the owners became disloyal and the other remained loyal, the latter has a right to sue for his moiety, although the former lost all his rights by his disloy- alty. (r) Where a citizen of Kansas, just before the war began, took horses to Mobile, and, failing to sell them be- fore the war broke out, remained to dispose of them, and afterwards was restrained from returning by the confederate authorities, and sold his horses and invested the proceeds in cotton, continuing loyal throughout the war, it was held that he had not thus given aid and comfort to the rebellion, and that, as he and his father were residents of a loyal state, the legal presumption was in favor of their loyalty, and he was virtually a prisoner in the south, and carried on no illicit trade with the enemy ; he had a right to invest the confeder- ate money, which was all he could get for the horses, in some- thing of permanent value, namely, the cotton afterwards taken by the government. But Nott, J., vigorously dissented, and said: "The claimant's intestate, on whose loyalty the case depends, went into a country threatening to rebel, and voluntarily remained after civil war had broken out. He made no attempt to return to his residence in the loyal states until July, 1861. The purpose for which he remained was merely to procure better prices for his horses. It does not excuse the act. The case comes within the decision in the case of The William Bagaleij, 5 Wall. pp. 377, 408, where Mr. Justice Clifford well defines the duty of a citizen when a war breaks out : 'If it be a foreign war, and he is abroad, he is to return without delay; and if it be a civil war, and he is a resident in the rebellious section, he should leave it as soon as practicable, and adhere to the established government.' ''{w) (<)Dc'osoQ ». United States, 5 C. of (f))Unlted Slates «. Burns, 12 C. 620. Wall. 24(i. (m)CuHUou «. United States, 5 C. (/rjFoster v. United States, 5 C. of of C. 627. ^ ^^^- 306 CLAIMS AGAINST THE NATIONAL GOVERNMENT. (2.) A naturalized citizen, if loyal, may sue in the court of <;laims, even if the claim arose before his naturalization, and bis naturalization was not perfected before the commence- ment of his suit.(.r) (3.) Citizens of countries which allow our citizens to prose- cute claims against their governments in their courts are allowed to prosecute, in the court of claims, actions against the United States; as Great Britain, (//) Prussia, (3') Switzer- land, (a) France, (/>) and Spain, (c) Cotton owned by a British subject, although he never came to this country, was, if found within the confederate territory during the rebellion, a legitimate subject of capture. But if he had not aided the rebellion he could sue (under act of March 12, 1863) in the court of claims to recover the proceed's thereof from the treas- ury. But if he aided the rebellion in any way he can have no standing in the court. Young v. U. S. 97 U. S. 39. (4.) An officer formerly in the navy of the republic of Texas can sue for his compensation as such in the court of claims, (fi) § 353. Infringements of patent rights by officers of the United States are not cognizable in the court of claims. (e) But the court has jurisdiction in a claim for royalty under a contract for the use of a patent. (/) § 354. The jurisdiction of the court extends only to judg- ments for money, and it has no jurisdiction to establish the right of a claimant to have a land- warrant issued to him.(g) § 355. The court may give relief where a paymaster has had his funds stolen from him when in the exercise of ordi- nary care, the ground of which is thus explained: "The law under which this court takes jurisdiction of cases like this presumes that disbursing officers may meet with losses with- out fault or neglect on their parts, and under circumstances (a;)Bul\vinkle ©.United States, 4 (djKothscliild's Case, 6 C. of C. C. of C. ;j;i5. 204. (//jUnited States v. O'Keith, 11 (r)Molina"s Case, 6 C. of C. 2G9. "Wall. 178. (fZ)Moore's Case, 4 C. of C. 139. (j)Bro\vn v. United States, 5 C. of (t')Fitcher's Case, 1 0. of C. 7. C 571. (/) Burns' Case, 4 C. of C. 113. (a)Lobsiger's Case, 5 C. of C. 687. (i^)Alire's Case, 3 C. of C. 447. CLAIMS AGAINST THE NATIONAL GOVERNMENT. 867 •which will excuse them from the increasing exercise of the utmost possible vigilance ; for, with that, it would rarely hap- pen that a loss would occur. The utmost possible vigilance might require of an officer that he should keep his hand upon bis treasure at all times; then loss of treasure would only happen with loss of life, or overpowering force. But a per- son may be without fault or neglect without the use of this abundant care or ca^ution. The necessity for such vigilance is not always apparent before the loss, and its exercise may not always be compatible with possible convenience and pres- ent appliances. After a loss excuses are listened to with reluctance. Expedients which might have been resorted to for its prevention are suggested with readiness, and in abun- dance; and indicate plainly that, although prevention is -pvei- erable to remedies, yet human nature is never sujierior, under all circumstances, to the vices and accidents of life. To require that disbursing officers shall be gifted with pre- science, or endowed with power to use superhuman efforts, so as always to avoid or prevent losses, would be to exact from mortals the exalted excellencies of superior beings. From the latter class disbursing officers are rarely, if ever, appointed, "(/t) And, in this case, the statute is held to be prospective, as well as retrospective, in regard to such losses. § 356. Claims arising under treaty are not cognizable in the court of claims, either originally, or by way of review over the finding of a special tribunal appointed by the treaty. (/,) And the statute expressly exempts claims under a treaty, whether with foreign nations or with Indians. § 357. Where a contractor refers a disagreement with the United States, as to the amount of a claim due him, and the United States consents to the reference, and the commission to which the matter is submitted awards a certain amount less than the claim, and the contractor receives payment of that amount, he cannot afterwards come into the court of claims for the remainder of his claim, even though he has not given a receipt in full.(j) It is, then, in the nature of res adjudicata, or, at any rate, of an award. (fe)Glenn's Case, 4 C. of C. r.06. (j)Unilcd States v. Justus, 14 (i)Meade'3 Case, 2 C. of C. 225. Wall. .OliS. 368 CLAIMS AGAINST THE NATIONAL GOVERNMENT. § 358. Where salvage services are rendered to a vessel belonging to the government, a suit for compensation may be brought by the salvor in the court of claims, (/r) § 359, It seems that although the court has not, ordina- rily, equity jurisdiction, yet congress may, where a legal defence fails through a defect in a written instrument, as a lease, refer back that particular case to the court of claims, with directions to grant such equitable relief as it appears the claimant is entitled to; but such a reference only confers a special jurisdiction pro hac vice, and does not extend to any subsequent case, however similar in its nature. (Z) And, also, congress may, by private act, confer jurisdiction, subject ta the same limitation, in a particular case arising under a treaty, (m) § 360. By the act of twenty-fifth June, 1868, the head of any executive office may refer any claim exceeding three thousand dollars to the court of claims ; provided it belongs to one of the several classes of cases to which, by reason of the subject-matter and character, the court might, under existing laws, take jurisdiction, on a voluntary action by the claimant. Under this, it is held that such otiicer can- not accompany the reference with a ^jrescription of what questions the court should consider. "His duty is performed when he sends the claim with the information that it involves disputed facts, or controverted questions of law. Thence- forth, the case is with the court, which will consider and de- termine such questions as legitimately arise in it."(w) Also it has been held that the head of the war department may, after a claim has been allowed for the hire of a steamboat under a charty-party with the United States, by the auditor and comptroller, refuse to pay the claim so allowed, and refer the case to the court, even if the vouchers, etc., which are to be transmitted with the reference, are in the auditor's office ;(o) a charter-party being within the range of the juris- diction, and the finding of the auditor not being regarded as necessarily final, even upon the party, and although he ac- (A;)Bn-ans Case, 6 C. of C. 128. (7i)Brigbt's Case, 6 C. C. 121. (Z) Cross' Case, 5 C. of C. 88. (o) Delaware Steamboat Case, 5 C. (m)Atocha's Case, 6 C. of C. 69. of C. 59. CLAIMS AGAINST THE NATIONAL GOVERNMENT. o()9 ccpts it.(p) But it is the reference that gives jurisclictio:i ; for there is no power of appeal from executive decisions to the court of claim 8.(5) It is held, however, that a presentation of a claim to an executive department is not a prerequisite to the bringing of a suit in the court, (?•) except where it is ordinarily settled in an executive de2:)artment.(.s) A regulation of an executive department, under which claims may arise for the adjudication of the court, is defined to be a rule made by the head of the department, under an emjiower- ing act of congress, and not a mere order ; and so these regu- lations, as well as the jurisdiction thereon founded, are sub- ject to the laws of the United States directly. (i) § 361. In a case where one enters into a contract with an Indian commissioner for supplies to the Indians, it appears congress may, by resolution, refer the case back to the court, with instructions to disregard the contract, and allow the claim on a quantum in.eruit.(^u) § 3G2. A claimant made a contract to furnish two thousand nine hundred cavalry horses, to be examined and inspected before accejatance. Before delivery the government adopted a new and more stringent rule of inspection. The claimant then refused to supjaly the horses under the agreement, regarding the new rule as a breach of the contract by the government, and brought suit thereon, and connected with this suit a claim for damages by reason of an illegal arrest and imprisoinnent. Held, that the claimant had no cause of action from the adoption of a new rule of inspection, and that the comt had no jurisdiction 9i an action to recover damages for an iih^gal arrest and imj)risonmeiit.(r) § 363. Military occupation and damages of the war during the rebellion are expressly excepted from the jurisdiction of the court of claims by the act of 1864. And it has been held that where suit was brought for such damage before the act (;i)Hogert"s Case, 2 ('. of C. ICO. (/)!! irvcy^s Casi-, ;J (". of ('. :!!>. (y)Tillou's Case, 3 C. of C. 454. (tONorris' Case, 2 C. of C. V)!^,. (rjSweeney's Ca.se, 5 C. of C. 291. (yjSpicer's Case, 1 C. of C. 316. («)Clyde's Case, Ibid, 140. V.l — 24 I 370 CLAIMS AGAINST THE NATIONAL GOVERNMENT. was passed, the jurisdiction was ousted by the passage of the act which dechires that its provisions shall extend from the commencement to the close of the wa.i\(w) But where a build- ing in Washington was taken possession of during the rebellion by the military governor of the District of Columbia for the use of the quartermaster general, and was thus used by a bureau of one of the departments of the civil service, it was held that a claim for the rent was within the jurisdiction, not- withstanding the building was taken by a military gov- ernor, (u;) But where a contract was privately made for sand, by an officer of the military service connected with the quarter- master's department in the field, namely, at Nashville, Ten- nessee, it was held beyond the jurisdiction, as being a mili- itary appropriation. (?/) So, where supplies were taken from a farm in Virghiia, and afterwards the quartermaster gave the owner a eertiticate of the supplies, it was held that such after certificate, and the promise of payment thereon for the sup- plies, did not give jurisdiction to the court, it being, neverthe- less, a military appropriation. (^) So, where a building was taken, in Memphis, for the use of the pay department, on the " promise of a clerk, without authorit}-, that rent should be paid, no lease of the building being given by the owner, but only his consent obtained upon the promise, it was held not within the jurisdiction. (a) And a claim for rent, accruing since the close of the rebellion, on property seized by the army during the war, is also excluded. (Z;) But where a building in the District of Columbia was taken by the military governor of Washington, as a military hospital, but was treated by the war department as held under an implied lease, the court iield tiiat it had jurisdiction, not being able to say that it was appropriated by the army.(c) And so, where a building in Memphis was held under a lease, with the knowledge and approval of the war department, and, when the lease expired, (//•)('orl)ctf s Case, 1 C. of C. 139. (./jAyer's CaFc. 3 C. of C. 1. {.t){:iark^s Case, 1 C. of C. 145. (A)Bi.>iK (//)K imlmlls Case, 18 Wall. (J.'iC (^)Slawson's Case, 4 C. of C. 88. (?:)Slia\v son's Ca.sc, t; ('. of C. (/)U. 8. V. llussell, 13 Wall. (i2:i 370. (ry)PeiTin /). V. S. 12 Wall. ol5.; (j).\Iii)ors Ca.sc, (J C. of C. 3:i:i. Pii-hs Case, i:J Wall. 033. o , _ CLAIMS AGAINST THE NATIONAIi (iOVEUNMENT, § 80i>. Where one has given aid and comfort to the rebel- lion he cannot come into the court ; and a pardon does not restore the power of suing. (7t) But paying to a confederate loan, under compulsion, and under protest, by one who per- sistently opposed the rebellion openly, is held not to be aid and comfort. (Z) § 367. Although it is a principle firmly fixed that the gov- ernment is not liable for the mere tortious acts of an officer, yet, where the act complained of is the mere withholding of money, the government is held liable for the acts of the exec- utive officers, in the court of claims; which says, on this matter of its own jurisdiction: "The court of claims was established to give legal redress to the citizens as against the government, where he would have had legal redress as against another citizen. We cannot give legal redress except upon legal principles. We cannot sustain a defence upon the part of the government, where, if set up by an ordinary defendant, it would be held illegal, inequitable, unconscionable. What would be said of a bank that would come into court, while still withholding the funds of a depositor, and plead that the refusal to pay over was the tortious act of its cashier? W^hat would be thought of a common carrier who, while re- taining possession of goods, i:)retends that the conversion was merely the wrongful act of his agent"? Such is the position of the government in this suit, withholding money that does not belong to it, insisting that the wrong was its agent's, though done on its behalf, and that the owner is without a remedy, (/n) § 368. The jurisdiction of the court of claims does not, in any case, extend to reviewing or questioning the decisions of a prize court. («) (A)Pargond's Case, 4 C. of C. 337. (njRoot & Connell's Case, 5 0. of (OPadelford's Case, 4 C. of C. 320. C. 408. (wi)Brown's Case, 6 C. of C. 1!)8. ABANDONMENT OF HOMESTEAD CLAIMS. 373 CHAPTEE VIII. ABANDONMENT OF HOMESTEAD CLAIMS. 4369. Duties of land officers usually ministerial but judicial as to aban- donment — instruction of land commissioner. 370. Jurisdiction of an equitable rather than legal nature herein. 371. Effect of cancellation of claims. 372. Synopsis of decisions from Lester. 373. Unintentional lapses. 374. Soldiers and sailors. 375. Claim made while in the army — what absences do not work aban- donment. 376. Onl}' one entry allowed. 377. Doulile homesteads on marriage. 378. Homestead entries only on surve.yed tracts. 379. Conflicting claims determined by bid.s. § 369. Under the homestead laws of congress, the duty of land officers is mainly ministerial. But they have a judicial power, in relation to abandonments for six months, and con- sequent forfeiture of the claim. Such contests are investigated by either the register or receiver of the land offices of the dis- trict wherein the land lies, and the decision is subject to a review by the secretary of the interior, in the nature of an appeal. The following instruction was issued by the commissioner of the general office, in regard to this matter, December 14, 1865: "When a homestead entry is contested, and applica- tion is made for cancellation, the party so applying must file an affidavit setting forth the facts on which his allegations are grounded, describing the tract, and giving the name of the settler. You will then set apart a day for the hearing, giving all the parties in interest notice of the time and place of Iriah On the day of hearing you will distinctly show, at the cap- tion of the papers in the proceeding, the name of the settk-r, description of the tract, number and date of entry. You will 374 ABANDONMENT OF HO:\IESTEAD CLAIMS. then proceed with the examinatiou of the witnesses. Each tleposition must be signed b}^ the ■witness, and acknowledged before either the register or receiver; and, at the conclusion of the trial, you will briefly review the testimony, and there- after will transmit to this office all the papers, with your joint decision thereon annexed thereto, for final determina- tion. Notice to a settler that his claim is contested must be served by a disinterested party, and a copy must be filed, with an affidavit that the notice has been served upon the homestead party, or brought home to him so as to be legal notice — such copy of notice and affidavit to accompany the papers. The expenses incident to such contest must be de- frayed by the contestant. "'(rij § 370. The judicial authority of the land officers in these matters is regarded as more equitable than legal; and so it has been held that persons who have made homestead appli- cations, but have not fully complied with the acts in force, yet have made some reasonable effort to comply, are regarded as having an equity which is to be respected. (6) And thus, where one had made an entry, and improved the land to the extent of two thousand dollars or more, and, after living on the claim a short time, leased it to another, and meanwhile a pre- emptor settled upon it and brought proceedings to cancel the homestead entr}^ it was held that, considering the value of the improvements, and also the fact in evidence that the homestead applicant l)elieved that residence or cultivation either w"Ould be sufficient, he should be allowed to make a new application and retain his claim. (c) § 371. The effect of an application is to withdraw the land from the public domain; and of a cancellation, to restore it again. (^/) Only citizens can perfect claims, but it is suffi- cient if citizenship be proved at the end of the five years' settlement. § 372. I avail myself of the following synojisis of decisions collected by Lester, (vol. 2, p. 26-1, etc. :) Proof must be made of actual settlement and cultivation {)Zal)riskifc's Land Laws. 1G4. ((nllii(L \i\2. ABANDONMENT OF HOMESTEAD CLAIMS. C75 up to the time of payment, so as to show a bona Jidc pur- pose, on the part of the settler, to make the land his per- manent homestead. Wherever the proof may show an honest effort by the claimant to meet the requirements of the statute, the register and receiver are directed to deal with the matter in no narrow, but in a liberal, spirit, yet in subordination to the requirement of the statute. In cases where the settler is deceased, and his legal representatives thereafter discover that the homestead papers describe other land than the tract embraced by his actual settlement, it has been held that the widow or representatives may prove and thereafter certif}^ on application, to the correct description of the tract upon, which the deceased actually settled, and when satisfactory the error in description may be corrected. Cases have arisen where persons have been complained against as failing to comply with the law, and where these, although failing in residence, have yet made considerable improvements ; and herein it has been held that, although their rights as homestead claimants have been forfeited, yet, in view of their improvements, they should be allowed to pur- chase the land at private entry, after the land was duly offered, and thereby made liable to such entry. And the same rule has been observed where the settler has died, and the heirs failed to continue the residence on the land. § 373. Cases of abandonment have also arisen, wherein it has been shown that, b}- reason of sickness, want of means> or other good causes, the parties, although they had cultiva- ted the land, had failed to make residence for the prescribed period of five years. In such cases, the land officers have refused to cancel the homestead entries, the intention of the settler appearing to be bona Me, and allowed the five years' residence to take date from the day of actual residence, on the party filing an affidavit, within a reasonable period, that he has permanently renewed settlement on the claim. § 374. Soldiers, and those serving in the navy, are enti- tled to deduct their term of service from the period of settle- ment. And, sometimes, these have made application, tliiongli agents, under the impression that no settlement is required 370 ABANDONMENT OF HOMESTEAD CLAIMS. until the expiration of their term of service, and that, should their service absorb five years, such service will be accepted in lieu of settlement and cultivation ; but it is held the law- recognizes no such arrangement, but that actual settlement and cultivation are required, so that title cannot be acquired unless the party, immediately upon discharge from service, enters upon the land, makes it his home, and cultivates it. § 375. At one time a case came up on an application to cancel a homestead entry, wherein the testimony showed it to have been made while the claimant was serving in the army of the United States, from which he was mustered out, in May, 1866. Soon after his discharge he built a small shanty, and began work on the homestead, continuing to occupy it, though with frequent short intervals of absence. It was held that he had not abandoned his tract, although the character of his improvement, and the manner of his residence, were not such as the law contemplates. The ap- plication for a cancelling was thereon refused; but a more complete compliance with the requirement of the law was en- joined. The settler was informed that he must put up a house which would answer the purpose of a permanent residence — not merel}' a place of temporary resort — to show his intention to comply with the law, and must make the land what the statute intends, his actual homestead : and he was allowed sixty days to complete the house and move into it — these facts being evidenced, at the termination of the sixty days, by affi- davit and corroborative testimony. § 376. One homestead privilege exhausts the right, even on commutation, but does not set aside a pre-emption privi- lege. § 377. Where a widow with a homestead settlement mar- ries a person who has made a homestead settlement on an- other tract, they are allowed to elect which tract they will retain for permanent residence, to complete the title, and then, as I understand from the decision, the other may be obtained by paying up under the homestead act of May, 1862, thereby perfecting the homestead ; this payment being re- garded as a commutation, or legal substitution, for the con- ABANDONMENT OF HOMESTEAD CLAIMS. 377 tinuous labor of the five years' settlement, and therefore as not having any subsequent pre-emption rights. § 378. Homestead settlements can only be made on snr- Teyed tracts, and the selection must be wholly in a snigle ■district. § 379. Where there are conflicting claims, in which the two stand on equal ground as to settlement and cultivation, the matter is to be determined by the highest bid made by either for the privilege. But if either has the priority of settlement, he is entitled to the privilege without bidding for it. 378 IMPEACHMENT. CHAPTER IX. IMPEACHMENT. §380. AVhat articles of impeachment embrace. 381. Effect of resiirnation before articles are preferred. 382. Futility of impeachment proceedings at present. 383. Example — Hopkinson case. 384. Same — Peck case. 385. Same — case of Judge Chase of the United States supreme courts 38(). Same — case of President Johnson. 387. Remark. § 380. A senate, whether of the United States, or of one of the states of the Union, sometimes becomes a court for the judicial decision of articles of impeachment, presented by the house of representatives, against an executive or judicial officer, for misdemeanors in office. Although such articles will lie for indictable crimes, yet they may embrace — and are particularly intended to embrace — offences not actionable at law. As at present constituted, such proceedings are very little better than a farcical absurdity, at least as regards executive officers, since the court is a political partisan body^ and a two-thirds vote is requisite to conviction, in every case. Either the jurisdiction will have to be abandoned altogether, or else a court of impeachment will have to be established, similar to criminal courts; not, perhaps, a separate court, but a separate branch attached to the ordinarj^ judicial courts, § 381. In the case lately pending before the senate of the United States, wherein Secretary Belknap was the accused party, a question of jurisdiction arose from the fact that he resigned his office before proceedings were instituted, but in contemplation of them. A majority — but not two-thirds — sustained the jurisdiction. It is manifest that if there were no penalty except removal from office, a resignation would completely circumvent it. But as it extends, also, to futm-e IMPEACHMENT. 370 perpetual disqualification, there is a basis for the exercise of jurisdiction herein, even when the office has been vacated. And the impolicy of advertising that a man may escape im- peachment by merely resigning when the crisis comes is cer- tainly quite apparent. § 382. It is scarely worth while to lay down any principles upon a matter which has lost nearly all its practical impor- tance, although, in a work on the general subject of jurisdic- tion, it seemed needful to give this a passing notice. In the star chamber days impeachments were easy enough; but now, in our country, an acquittal is almost a foregone con- clusion in any case, however Hagrant. § 383. In 1780 articles of impeachment were presented to the senate of Pennsylvania against Francis Hopkinson, judge of admiralty. The articles contained the following charges : I. "That having a power by law to appoint an agent for unrepresented shares belonging to absent seamen, and others, he offered and proposed to appoint Mr. Blair McClenachan agent for a number of such shares belonging to seamen who had sailed on board the privateer Holker, upon the condition that he, the said Blair McClenachan, would make a present of a suit of clothes, and, this condition not being complied with, he appointed others in his stead. II. "Receiving presents from persons interested in the con- demnation of prizes previous to their condemnation ; particu- larly a cask of wine from on board the prize brigantine Gloucester, presented to him by the captors before any con- demnation, sale or distribution. III. "Conniving at, and encouraging, the sale of prizes before condemnation, contrary to law, and maliciously charg- ing the marshal with the crime of such conduct before the honorable, the supreme executive council, in the instance of the prize ship Charlotte. IV. "Issuing a writ of sale of the cargo of a prize, declar- ing in the same writ that it was testified to him that the same cargo was in danger of waste, spoil, and damage, when, in fact and in truth, no such testimony was ever given to him, in till' mstance of the cargo of the prize ship Albion." 380 IMPEACHMENT. Tlie judge bad a unanimous acquittal on all the four charges. § 384. In 1839, Judge Peck, judge of the district court of the United States for the district of Missouri, was impeached before the United States senate, for imjDrisoning an attorney of the court, and disbarring him for eighteen months, for contempt in criticising the action of the court in a St. Louis newspaper, by an article published subsequently to the pro- ceedings whereon the criticism was based. He was acquitted by a vote of twenty-one "guilty," and twenty-two "not guilty." § 385. In 1804 articles were preferred against one of the judges of the supreme court of the United States, and tried by the United States senate. The charges were : I. "That the said Samuel Chase did, in his judicial capac- ity, conduct himself in a manner highly arbitrary, oppressive and unjust," in the following particulars: (1) In delivering an opmion in writing on the question of law, on the construc- tion of which the defence of the accused materially depended, tending to prejudice the minds of the jury against the case of the said John Fries, the prisoner, (on a charge of high trea- son against the United States.) before counsel had been heard in his defence; (2) in restricting the counsel for the said Fries from recurring to such English authorities as they be- lieved apposite, or from citing certain statutes of the United States which they deemed illustrative of the positions upon which they intended to rest the defence of their client; (3) in debarring the prisoner from his constitutional privilege of ad- dressing the jury (through liis counsel) on the law as well as on the fact which was to determine his guilt or innocence, and, at the same time, endeavoring to wrest from the jury their indisputable right to hear argument and determine u^jou the question of law as well as the question of fact involved in the verdict which they were required to give ; in consequence of which irregular conduct of the said Samuel Chase, as dan- gerous to our liberties as it is novel to our laws and usages, the said John Fries was deprived of the right secured to him by the eighth [sixth] article amendatory of the constitution, IMPEACHMENT, 381 and was condemned to death* without liaving l)een beard by counsel in his defence, to the disgrace of the character of tbe American bench, in manifest violation of law and justice, and in open contempt of the rights of juries, on which untimately rest the liberty and safety of the American people. II. "That, prompted by a similar spirit of persecution and injustice, at a circuit court of the United States, held at Rich- mond in the month of May, etc., for the district of Virginia, before which a certain James Callender was arraigned for a libel on John Adams, then president of the United States, the said Samuel Chase, with intent to opjjress and procure the conviction of the said Callender, did overrule the objection of John Bassett, one of the jury, who wished to be excused from serving on the said trial because he had made up his mind as to the publication from which the words charged to be libel- lous in the indictment were extracts, and the said Bassett was accordingly sworn and did serve on the jurj^ by whose verdict the jDrisoner was subsequently convicted. III. ''That, with intent to oppress and procure the convic- tion of the prisoner, the evidence of John Taylor, a material witness on behalf of the aforesaid Callender, was not permitted by the said Samuel Chase to be given in, on pretence that the said witness could not prove the truth of the whole of one of the charges contained in the indictment, although the said charge embraced more than one fact. IV. "That the conduct of the said Samuel Chase was marked during the whole course of the said trial by manifest injustice, partiality, and intemperance, viz. : (1) In compelling the pris- oner's counsel to reduce to writhig, and submit to the inspec- tion of the court, for their admission or rejection, all ques- tions which the said counsel meant to propound to the above named John Taylor, the witness ; (2) in refusing to postpone the trial, although an affidavit was regularly tiled, stating the al)sence of material witnesses on behalf of the accused, and although it was manifest that, with the utmost diligence, the attendance of such witnesses could not have been procured at that time: (3) in the use of unusual, rude, and conterapt- *Hut paiddiicd. 382 IMPEACHMENT. lions expressions towards tlie prisoner's counsel, and in falsely insinuating that they wished to excite the public tears and indignation, and to produce that insubordination to law to which the conduct of the judge did at the s\me time mani- festly tend ; (4) in repeated and vexatious interruptions of the said counsel on the part of the said judge, which at length induced them to abandon their cause and their client, who was thereupon convicted and condemned to fine and imprisonment; (5) in an indecent solicitude manifested b}' the said Samuel Chase for the conviction of the accused, unbecoming even a public j^rosecutor, but highly disgraceful to the character of a judge, as it was subversive of justice. V. "And whereas, it is provided b}" the act of congress, passed on the twenty-fourth day of September, 1789, entitled 'An act to establish the judicial courts of the United States,' that, for any crime or offence against the United States, the offender may be arrested, imprisoned, or bailed, agreeably to the usual mode of process in the state where such offender ma}' be found; and whereas, it is provided, by the laws of Virginia, that, upon presentment by any grand jury of an offence not capital, the court shall order the clerk to issue a summons against the person or persons offending, to appear and answer such presentment at the next court; yet the said Samuel Chase did, at the court aforesaid, award a capias against the body of the said Callender, indicted for an offence not capital, whereupon the said Callender was arrested and committed to close custody, contrar}' to law in that case made and provided. VI. "And whereas, it is provided by the thirty-fourth sec- tion of said act, entitled 'An act to establish the judicial courts of the United States,' that the laws of the several states, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as the rules of decisions in trials at common law, in the courts of the United States, in cases where they apply; and whereas, by the laws of Virginia, it is provided, that, in cases not capital, the offender shall not be held to aaswerany presentment of a grand jury until the court next sueeefdinj IMPEACHMKNT. 383 that at which such presentment shall have heen made; yet the said Samuel Chase, M'ith intent to oppress and procure the conviction of the said Callender, did, at the court aforesaid, rule and adjudge the said Callender to trial dur- ing the term at which he, the said Callender, was presented and indicted, contrary to law in that case made and pro- vided. VII. "That, at a circuit court of the United States for the district of Delaware, held at New Castle, in the month of June, 1880, whereat the said Samuel Chase presided, the said Sam- uel Chase, disregarding the duties of his office, did descend from the dignity of a judge, and stoop to the level of an in- former, by refusing to discharge the grand jury, although ■entreated by several of the said jury so to do, and after the said grand jury had regularly declared, through their fore- man, that they had found no bills of indictment, nor had any presentments to make, by observing to the said grand jury that he, the said Samuel Chase, understood ' tliat a highly seditious temper had manifested itself in the state of Dela- ware, among a certain class of people, particularly in New Castle county, and more especialh- in the town of Wilming- ton, where lived a most seditious printer, unrestrained by any principle of virtue, and regardless of social order ; that the name of this printer was' — but, checking himself, as if sensi- ble of the indecorum he had committed, added, 'it might be assuming too much to mention the name of this i>erson, but it becomes your duty, gentlemen, to inquire diligently into this matter;' and that, with intention to procure the pros- ecution of the printer in question, the said Samuel Chase did, moreover, authoritatively enjoin on the district attorney of the United States the necessity of procuring the file of the papers to which he alluded, and which were uiuh'rstood to be those published under title of 'Mirror of the Times and General Advertiser,' and, by a strict examination of tliem, to lind s.)me passage which might furnish tiie groundwoik of a prosecu- tion pgainst the printer of the said paper, thereby degrading Lis high judicial functions, and tending to impair the public 3S4 IMPEACHMENT. confidence in, and respect for, tiie tribunals of justice, so es- sential to the general welfare. YIII. "And whereas, mutual respect and confidence be- tween the government of the United States and those of the individual states, and between the people and these govern- ments, respectivel}^ are highly conducive to that public harmony without which there can be no public happiness, yet the said Samuel Chase, disregarding the dignity and duty of his judicial character, did, at a circuit court for the dis- trict of Maryland, held at Baltimore, in the month of May, 1803, pervert his official right and duty to address the grand jury then and there assembled on the matters coming within the province of the said jury, for the purpose of delivering ta the said grand jury an intemperate and inflammatory politi- cal harangue, with intent to excite the fears and resentment of the said grand jurj^ and of the people of Maryland, against their state government and constitution — a canduct highly censurable in any, but peculiarly indecent and unbecoming in a judge of the supreme court of the United States: and, moreover, that the said Samuel Chase, then and there, under the pretence of exercising his judicial right to address the said grand jury as aforesaid, did, in a manner highly unwar- rantable, endeavor to excite the odium of the said grand jury, and of the good people of Maryland, against the government of the United States, by delivering opinions which, even if the judicial authority were competent to their exj)ression on a suitable occasion and in a proper manner, were, at that time, and as delivered by him, highly indecent, extrajudicial, and tending to prostitute the high judicial character with which he was invested to the low purpose of an electioneering partisan." The vote stood thus : Guilty, 16, 10, IS, IS, 0, 4, 10, 19 ; not guilty, 18, 24, 10, 16, 34, 30, 24, 15. So he was acquitted on all the charges, with a majority vote against him on some of them. § 380. In 1808 articles of impeachment were preferred against President Johnson, with the usual result — an acquit- IMPKACHMENT. 385 tal; tlie vote, however, staiid-ing within one of a two-thirds in favor of sustaining the impeachment. § 387. Without ins.nuating anything either way as to the guilt or innocence of the persons I have named, I judge it is not going too far to say it would be as impossible to convict Lord Jeffries on articles of impeachment, under the present arrangement, as it was in the very height of his tyranny as a judicial demon in England. Let what has above been presented as examples, or illus- trations, of the matters on which impeachment jurisdiction has been exercised, suffice for our present purpose. v.l— 25 386 JURISDICTION OF JUSTICES OF EHE PEACE. CHAPTER X. JURISDICTION OF JUSTICES OF THE PEACE. 388. Want of uniformity in the different states. 389. Law of presumptions. 390. Titles to lands. 391. .Justices of llie peace in the District of Columbia. 392. Immunities of a justice of the peace. 393. Process. 394. Venue. 39.'i. Rules as to process and returns. 396. Disqualitication. 397. Evidence. 398. .Tudgments by default not allowable. 309. Guardian ad litem. 400. Di-scretion of a justice. 401. Void and voidable acts. 402. Jurisdiction limited by amounts. 403. .Jury trials. 404. Entry of judgment. 405. Relation of a justice to other justices. 406. Legislative power in conferring jurisdiction. § 388. The jurisdiction of justices of the peace is so com- pletely and strictly statutoiy, and the statutes of the various states are so far from being uniform, that hardly any general principles are available. Thus, in some states, justices' courts are regarded as inferior courts of record ; in others not. In some they are considered common-law courts ; in others not — that is, to a certain degree. Thus, at common law, a justice of the peace had no power whatever to try offences. He was only an examining magistrate, to inquire into the grounds of holding an accused person to await the finding of an indict- ment in the proper court. x\nd the power of trying petty offenders is v.'holly statutory, and it must be exercised in strict accordance with the statute. Wai/s Case, 41 Mich. ^503. § 389. However, the law of presumptions, etc., which pre- JURISDICTION OF JUSTICES OF THE PEACE. 3S7 vails as to all inferior courts, is tlie governing rule or princi- ple herein also. That is, jurisdiction must affirmatively ap- pear. Nothing can be presumed to be within the jurisdic- tion, [Downing v. Florer, 4 Col. 209;) although a statute may give a justice exclusive jurisdiction, and, where this is done, a higher court cannot entertain a cause within its limits, even if the remedy before the justice is inadequate therein, and though the amount may be beyond the justice's jurisdiction, so that the cause cannot be entertained by him. State V. McAllister, 60 Ala. 106. § 390. And I suppose that almost, if not quite, universally, justices have no jurisdiction to try the titles to lands. And we may state the general principles governing this regulation. The rule is thus stated by the New Jersey court : The jus- tice "has no jurisdiction to inquire into the title to lands or into the right of possession. He can only take cognizance of possession as a question of fact. Whore the p^'iintiff can maintain his right to sue in trespass by proof of actual possession — which the justice may determine upon evidence of facts, without any inquiry into title — the action is cog- nizable in a justice's court; but if the possession be merely constructive, and can be shown only by proof of title, the justice has no jurisdiction. If documentary or other evidence relating to title be relied on, which the justice cannot adju- dicate upon, another tribunal must be resorted to." Jejfrei/ V. Given, 41 N. Y. 262. And see Grcgorij v. Kdnousc, (> Halst. 62 ; Hill V. Carter, 1 Harr. 87 ; Campjicld v, Johnson, 1 Zab. S3; Dickerson v. Wiuhirorth, 4 Vroom, 357. In Vermont it is held that the term "land," employed in the statute giving jurisdiction to justices of the peace, is suf- ficiently comprehensive to include within the exception of the statute a right of way over real estate held by the public, or an individual. But it is further held, thereunder, that a jus- tice is not excluded by that statute from entertaining juris- diction of an action, merely because, under the plea of the general issue, or a plea in bar, the title of land mag be drawn into controversy, but only when the action nccessarilg involves such inquiry, as ejectment, and real actions, or when, by the ;ss JURISDICTION OF JUSTICES OF THE PEACE. course of pleading, the title to land is actually contested. ('/) And so, in New York, it has been held that, although by the plaintifif's own showing the title to lands is in question, and the justice improperl}^ refuses to dismiss the cause, his judg- ment will not he void for want of jurisdiction, but only void- able, for error; on the ground that the justice may properly proceed to render judgment, even if evidence of title is given by the plaintiff, if the defendant does not expressly dispute such title, nor move to have the cause dismissed, (6) And, also, a justice has a right to try questions of possession of land in an action of trespass quare clausum f regit, (c) In Pennsylvania, also, it is held that a merely incidental question of title to land does not oust the jurisdiction of a justice. ir/) And, indeed, this is probably the prevailing rule. In Missouri replevin may be brought for a frame building not attached to the realty, and a justice ma}- retain jurisdic- tion to ascertain, from the evidence, whether it is so attached or not.(<') It is so in Illinois likewise, and I think is the general rule. Salter v. Sample, 71 111. 430; Ogden v. Stock, 34 111. 522. (a)Whitman».Pownal, 19 Yt. 223. Thus, in that state, recovering a penalty for tearing down gates on a pent road is out of jurisdiction, (French v. Holt, 51 Vt. j45:) and also an action on the case for ob- structing a water course, (Haven v. Needham. 20 Vt. 183 ;) and for erect- ing a nuisance near plaintiff's resi- dence, (Whitney v. Boweu, 11 Vt. 2')0;) and all cases wherein the plaintiff is bound to prove or dis- prove title to land, (Jakeway f). Bar- rett, 38 Vt. 316.) In Mississippi it is lield tliat while the statute of forcible entiy and detainer does not confer upon jus- tices of the peace the power to ad- judicate real estate tit'es, yet it does give jurisdiction of cases where the right of possession, is deduced from an exhibition of title, (Rtgan v. Harrell, 52 Miss. 823:) which, it will be seen, is quite different from the Vermont rule. In actions for rent, of course the relation of landlord and tenant must be shown, and then the tenant is not permitted to dispute the land- lord's title. This is a universal rule. Handle v. Sutton, 43 Md. G5 ; Math- ews V. Morris, 31 Ark. 225. And so a justice of the peace has juris- diction in an action for damnares to real estate, brought by a lessor against a lessee, since such action docs not include any tiuestion of title. Taylor ». Koshetz, 88 111. 479. (AlKoon r. Mazuzan, 6 Hilf. 44. ((•)Ehle r.. Quackenboss, Id. 537. (r?) Heritage r. AVilfory, 58 Pa. St. 1.S7. l«')Elliutt r. Black, 45 Mo. .373. JURISDICTION OF JUSTICES OF THE PEACE. SSU But, in Wisconsin, title to land includes a title to a divis- ion fence, the fence being regarded a part of the realty. (7) Possession of land is there regarded as distinct from title, and it may, therefore, be passed upon by a justice, in an action of entry and detainer, where no question of title arises, the entry having been forcible, and not under a bona fide claim of colorable title. In other words, where the conflict is only one of possession, and not of title, a justice has jurisdiction, as a general iu\e.(g) In Indiana it is held that a proceeding to assess damages for the construction of plank-roads, etc., does not involve a question of title to lands, (/t) so as to exclude jurisdiction. In Vermont it is even held that the giving of a quitclaim deed does not import title to land ; and, therefore, that if the declaration in an action of covenant alleged that the giving of a quitclaim deed was the consideration of the covenant, the jurisdiction of a justice of the peace would not be ousted in such action, (t) In New York a right to put in a plea of title may be waived by proceeding in the cause before a justice. (J) And even a plea of title put in properly does not oust the jurisdiction, in an action of debt for a penalty for not removing an obstruc- tion in a highway, because it is the duty of the justice to decide whether the plea is appropriate to the action or not. (A) In Maine an action of trespass qaare da usumf regit cannot be maintained before a justice if title is pleaded ;(/) but if the case thus goes to the court of common pleas, and thence, by demurrer, to the supreme judicial court, the defendant will not be allowed in the latter court to add any other plea which could have been tried by the justice. (///) In Massachusetts it has been held that, where the plea was that the defendant entered into his own close, adjoining that of the plaintiff, and there built a fence, etc., the justice had (/)Murrayv. Van Dc'rlyn,24 Wis. (/)Quiml«y «. Hart, If. .lolins. 67. *304. (.9)Wintcrfield v. Stiiuss, Id. 39s. (/.jb'leet «. Voim.u-j, 7 Wciid. i!lil. (k)NoiTlstown, etc., v. Burkct, 20 {IjLov/ v. Uoss, :; (irccnl. 'I'tn. j^j 53 (m)C<)pcl;ind »). Bean, 9 (ircenl. (i)Judevine v. Holton, 41 Vt. :J51. 19. 300 JURISDICTION OF JUSTICES OF THE PEACE. jurisdiction. (») But a plea that the locus in quo v^as a high- way ousts the jurisdiction. (o) Evidence of a right of way cannot be given under the general issue, however. The plea must be special. (j:>) In Vermont it has been held that, where an action is brought for obstructing a part of the public road laid through the de- fendant's land, the title is not involved, essentially, so as to oust jurisdiction, ((/) Again, held that manure lying upon the soil where first dropped is a part of the soil, but not so if it has been collected for use elsewhere. And, in the latter case, trover, before a justice of the peace, may be maintained 1»3' a vendor against a vendee. (r) In Maryland a vendor may bring an action against the vendee of land for the purchase money, before a justice of the peace, if the contract is not still executory. But if a deed has not been given and accepted, such action cannot be brought, because then the plaintiff must prove that he has. good title to the land. Cole v. Iltjnes, 46 Md. 185. In Iowa a mere plea of title cannot oust the jurisdiction. (.s) Moreover, where a petition chxims damages for breaking down trees, it has been held that the plaintiff is not confined to the value of the trees destroyed, but can recover for the conse- quent injuries to the realty. (f) In Ohio it is held that, under the liquor law, a justice of the peace has no jurisdiction of an action brought against the owner or lessee of the premises where liquor is sold ; such an action drawing into question the title to real estate. (») In New Jersey the jurisdiction does not attach in case of obstruction to a private road. The court say: "To maintain the action the plaintiff must prove not only the obstruction, but his right to use the way without obstruction. He must prove his right of way. That is not a thing corporate, an object of the senses, but an incorporeal hereditament; aright (//)Wi)od V. rrcscoti, 2 .Mass. (r)Frencli )Slrout V. Berry, 7 Mass. 385. 184. (7)Bcll V. Frouty, 43 Vt. 279. JURISDICTION OF JUSTICES OF THE PEACE. 391 issuing out of a thing corporate; a thing lying not in livery, but only in grant; a right that may be enjoyed without the exclusive possession of the land. To prove this right the party must exhibit documents showing a grant, or give evi- dence of such continued enjoyment as implies a grant. Tiiis is title in its full sense. Such proof is not competent, in that court ; and the cause requiring it is, by the statute, not within its jurisdiction. "(i') In New York, where a plank-road company sues for toll, the defendant cannot be allowed to raise the question of title unless he gives notice thereof in his answer. (?(;) In Vermont an account between tenants in common of land is not within the jurisdiction, because therein the de- fendant might plead that be never was bailitf or receiver for the plaintiff, and thus bring in the question of title. (a;) In actions quare, etc., in that state, a justice may try title provided the claim is not more than twenty dollars. In New Hampshire an action of debt under the statute was brought for cutting trees. The plea was that the defendant lawfully cut the trees while he was in possession under a lease from the plaintiff. The reply was that the lease had been cancelled befpre the trees were cut. It was held that this replication brought the title into question, and ousted the jurisdiction of the justice. (?/) But in an action for cutting trees, real estate title is held not to be necessarily involved, in Indiana. Deacon v. Poicers, 57 Ind. 4S0. § 391. In the District of Columbia justices of the peace are nominated by the president, and confirmed by the senate. They are, therefore, held to be ofiicers of the United States government, in such a sense as to exempt them from the obli- gation to perform military duty, under statutes to that ef- fect.(^) And where a magistrate is found acting as one, lie is to be presumed properly qualified. (nt) («))()sl)orn(i V. J>iitc)u!r, 2 Dutcli. (//j.Morsc «. Davis, 4 Foster, JT)!). 3X0, {^)^Vise v. Willicrs, .'] Craiuli, (w)Fr(,'(loniii, etc;, v. Uait, 27 •■!:i(). Barb. 214. ((()l>i)llman ik Swailwuut's Ca.sc, (j:)Tliaycr v. Montgomery, 2(J Vt. 4 Craiu-h, 75. 491. 302 JunisDicTioN of justices of the peace. § 392. It has been held that the same technical precision will not be required either as to pleadings, or evidence, in proceedings before a justice of the peace, that is uecessarj' in a court of record. (/^) And he is not answerable in a civil suit for error in judgment, however gross, if he has jurisdic tion of the cause. (c) Nor is he, in any case, indictable for mal-aduiinistration, although he may be liable to impeach- ment. (^/) § 3l>3. As to process, he may proceed for offences com- mitted in liis presence without any comj)laiut or warrant ; as, for example, in profane swearing, (e) And in such case he may be authorized to require persons not officers to make arrest, if necessary ; but, then, it has been held, in New Hampshire, a regular complaint and warrant must be made out and served by a proper ofticer.(/) But, probably, the general rule is otherwise, as these subsequent forms wonld seem to be quite supartluous. In Massachusetts he may, in cases of strict necessity onl}', direct a warrant to a private person, the necessity to be expressed in the warrant itself, (r/) And in Vermont a justice may deputize an officer to serve a writ, where it appears that service may fail for want of an officer available in time. And in Illinois. But the person must be appointed by name, and the justice cannot leave a writ vacant, to be filled up by the plaintiff as to the deputy.(/*) A justice cannot, of course, on general principles, issue a warrant for an oft"ence commited in another state. (i) § 394. x\s to venue: a justice may be authorized to act judicially outside of the town for which he was elected. Thus, in 1813, the statute of New York provided that "justices of the peace must reside in the town for which they were chosen, and shall not try a civil cause in any other town, except in cases otherwise provided for by law." A case came up in the (6)Unsier «. Trumpl)()ur, 5 Wend. (e)Holcomb v. Coruish, b Couu. 274. 375. (c)HolL-oinb V. Cornish, 8 Conn. (/)Bissell v. Bis.sell, 3 N. H. 521. 375. (5r)Common\vealth v. Foster, 1 (a)State v. Campl.ell, 2Ty]er,(Vt.) Mass. 4'.t3. 182. (/OKellog.^■•s Case, (J Vt. 510. (t)Ptoi)le V. Wright, 2 Caines, (X. Y.) 213. JURISDICTION OF JUSTICES OF THE PEACE. 303 supreme court wherein the court below had decided that a justice could not act judicially out of the town for which he was elected, and it was said : "He may act as conservator of the peace, and exercise his criminal jurisdiction, anywhere in the county ; he may send his civil process into any part of the county, and I find nothing to prevent him from issuing his process at any place in the county; but he shall not hold a court for the trial of a civil cause out of his own town, and if he removes from the towai in which he was elected he forfeits his office." (^'j But at a later period, (1818,) a justice was autliorized to act anywliere in the county in the trial of civil causes ; again, in ISoO, he was restricted anew to the town.(^") In Texas it has been decided that parties, b}^ consent, cannot confer jurisdiction of their cause to a justice out of his pre- cinct. (/) In the absence of an empowering statute, doubtless, the authority is strictly local ; but is generally co-extensive with the county as to the issuing of writs, although not as to the place of trial. Cain v. Sim2:)soii., 53 Miss. 524; Klingel V. Palmer, 42 la. 107. Sometimes jurisdiction is strictly confined to residents of the county, (Hamilton v. MiWiouse, 46 la. 74,) and even as to an action in attachment, (Gates v. War/ner, 46 la. 355,) and even although jurisdiction in actions of attachment and replevin is not limited to the toiniship where the parties reside or the property is found. Knowles v. Pickett, 46 la. 503. • In Illinois it is held that a justice of the peace may take jurisdiction of an action for damages done to real property in another county, provided the parties reside in tlie magis- trate's county. Pibjrlm v. McUer, 1 111. Ajtpel. 448. In Colorado it is held that a statute requiring that suit must be brought in the township where the debtor resides, does not applv to debtors residing out of the state, and that such non-resident debtors may be sued wherever found in the state. Wagner v. Hallock, 3 Col. 176. In Wisconsin jurisdiction is lost by calling a case for trial (j)Guernsey v. Lovell, 9 Weud. (/,)S(liiorpcl v. Taylor, 10 Wend. S22. " liUC. (Z)Fostcr V. McAdams, 9 Tex. 542. 31)4 JURISDICTION OF .TUSTICES OP THE PEACE. at a place different from that specified in the summons; and, also, by trying it at the office of the plaintiff's attorney, althouiih the place be designated in the summons. (m) Venue may be changed in modes prescribed by statute, and where the justice to whom cliange is made refuses to act, and then the orighial justice takes back the case and tries it, the judgment is void for want of jurisdiction. («) It appears, moreover, that a change of venue may operate as an estoppel. Thus, where a suit of replevin was brought before one, as a justice of the peace, and a change of venue was taken to a justice, and afterwards the case was appealed to the circuit court, it was held that the party taking the change of venue could not be allowed to move a dismissal of the appeal, on the ground that the first person was not a jus- tice at all, because he had waived all objection as to jurisdic- tion by going to trial before the second person, who was really a justice, to whom he had referred the matter on change of venue. ((j) § 8!>5. Where a statute forbids any sheriff from drawdng up or filing any writ, etc., an alteration of the date, or return day, of a justice's summons, not made by the justice himself, or by another in his j^resence, and under his direction, ren- ders the summons void,(p) although, of course, that or any defect maybe waived by an appearance without objectiofi,(g') unless there is no jurisdiction of the subject-matter; for in this, as in all such cases, in all courts, the rule prevails that appearance cannot confer jurisdiction. Borger v. Moore, 42 la. 645. The appearance must be personal, or else must be expressly authorized, for even attorneys are not officers of a justice's court, and so cannot therein bind a party by an un- authorized appearance. Spernj v. Reijnolds, 65 N. Y. 183. In Minnesota it is held that a summons issued in blank as to the return day is void; and if any one else fills up the blank, and the writ is then served, this service confers na jurisdiction. Cra'ujhedd v. Martin, 25 Minn. 44. (/i))Xc'wcomb V. Town, etc., 24 (o)Graves v. Slioefelt, 60 111. 462- Wis. 45:1. (/>)Garrison v. Hoyt, 25 Mich. 509. (/,)Connell v. Wilson, 33 la. 147. (fyjTyrrell v. Jonas, 18 Minn. 312. JUEISDICTION OF JUSTICES OF THE PEACE. 395 A summons may be signed by the initials of the first names, as well as by writing out the full name.(>) After a judgment has been entered, the constable's return cannot be impeached, collaterally, in order to dispute the juris- diction and defeat the judgment. If a return is really false, it must be impeached only in a direct proceeding, by prosecu- tion of the officer, or on appeal, (.s) In New York, if a summons be served on two defendants, the name of one of them cannot be subsequently dropped in the proceedings — the justice having no power of amendment of this kind, and no power, therefore, to permit a plaintiff to declare against only one of two joint defendants who have been served. (f) Where a justice deputizes one to serve a summons, he must do it in the same manner in which a regular ofdcer does it, and therefore make a return in writing. And where such a one appeared on the return day, and made oath that he had served the writ, but there was no return indorsed on the sum- mons, it was held the justice acquired no jurisdiction. (?6) § 396. A justice may, of course, be disqualified, by rela- tionship, or interest. In Maine it is held that a justice re- lated to a party within the sixth degree is disqualified to take a deposition in the cause, and is, therefore, liable in trespass for committing a witness who refuses to testify therein. Call V. Pike, 66 Me. 350. If, however, the relationship is by afiinity, the disqualification ceases on the dissolution of the marriage, even if there remains living issue. Trout v. Draw- horn, 57 Ind. 570. As to interest, a justice of the peace cannot issue a search warrant for his own property; and if he does so, the writ affords no protection to the officer who serves it. Jordan v. Henri/, '2'-2 Minn. 245. But, where a corporation sues, it is no valid objection that the justice is related to a stockholder therein ;(>') nor is it an objection that a justice is a rated inhabitant of the town into the treasury (r)\V()()(l /•. Fiilii.ui, 4 Zal.ris. S!S. (wj.Iackson •/:. *Slicr\V(i(Kl, .Id IJarl). (.•<)I{. H. .-. Punly, ]S l]:irl). ')74. ■'v")";. (/)Giliuorf ('. Jacobs, 4s IJarb. (/))ScaI•sln^^^■ TiiriipiktJ Co. w. Cul- :i.J(>. ler, (J Vt. :}15. 396 JUEISDICTION OF JUSTICES OF THE PEACE. of wliicb fines are to l)e paid on conviction. (/r) This, how- ever, was formerly different in Massar-husetts, (1S16;) (x) but later, (1S2S,) it was said that the prohibition did not apply where the fine went to the state instead of the town.(//) A singular disqualification was imposed in New York, in 1808, by statute, still continuing, with some modifications; namely, the keeping of a tavern. By an early decision, it appears that if a justice lived in a tavern, or removed into the end of a houss, the other end of w4iich was kept as a tav- ern, and there being free communication from one end to the other, he could not act.(^) In 184-5 it was held that a jus- tice was not deprived oi jurisdiction b}^ being a tavern keeper, provided he was such at his election, and did not become so afterwards(Vf) — a kind of semi-evasion of the statute, it would seem. § ,307. A justice cannot properly render judgment on his own knowledge of previous facts. All facts serving as the basis of judgment must be adduced in evidence in the legal manner. (^) And even where a justice received a paper, to- gether with a note purporting to have come from the defend- ants, authorizing him to enter judgment by confession, and he did according to the request, it was held that he could not legally enter judgment on his knowledge of the defendant's handwriting. (c) Such a communication, though genuine, I think cannot properly authorize the entry of judgment. Nor can he be sworn in a cause he is trjang as a witness: since a justice before whom a cause is tiied must himself swear the witnesses, and an oath administered to him, there- fore, by another justice, is extrajudicial and improper, (rf) It seems, however, that it may be admitted by consent of the parties. ((?) § 3{)8. It is, perhaps, a general rule — at least, where jus- tices' courts are not regarded as courts of record — that a jus- (?c)St:Uc V. Batcbelder, Id. 479. (/>)I5uilingham v. T)eyvv, 2 .Johns. (.?•) Pcarce v. At wood, 13 Mass. 324. 188. (//)IIill V. "Wells, 6 Pick. 109. (r):\rartin v. Moss. C .lolins. 12(). (j)Low y). Rice, 8 John.s. 409. (d) Perry v. Wcyinan, 1 .lolms. ( ')Parraelee r. Thompson, 7 Hill, 520. 77.' (e)Cobb v. Curtis, 8 Johns. 470. JURISDICTION OF JUSTICES OF THE PEACE. 307 tice cannot enter a judgment by default against a defendant: but where a defendant does not appear the plaintiff must prove his cause precisely as if there were an actual defence put in.(/) § 399. In New York a justice may appoint a guardian ad litem for a minor party, this being held an incident to all courts. (//) § 400. A justice has no discretion — as higher courts have — to suspend proceedings in an action until the costs of a for- mer suit for the same matter are paid. In courts of record this may be done, but on a rule to show cause, and in the exercise of a large discretion. (/;) However, a justice is not wholly left without discretion as to a cause on trial. And where, in the progress of a trial, he may judge the presence of any one to be prejudicial to the interests of justice, it has been held he has the right to have him summarily removed from the rooni.(i) § 401. The usual distinction as to void and voidable acts l^revails in regard to a justice of the peace; namely, where the justice has no jurisdiction whatever, and undertakes to act, his proceedings are coram non jiidice; but if he has juris- diction, and errs in exercising it, the proceedings are only voidable, (J) and that by a direct proceeding. § 402. Jurisdiction is usually limited by amounts, as well as the nature of the subjects of controversy. But where there is a variance between the process and the declaration as to amount, it has been held in New York as a mere matter of form, and no variance fatal to the cause. (A;) But in Illinois, where there are no paper pleadings, the amount indorsed on the summons governs, and a plaintiff cannot take judgment for anything beyond it;(/) whereas, in New York, the declara- tion defines the jurisdiction. A plaintiff' may remit any excess found by a verdict beyond (/)Watkuis «. Weaver, 10 .Johns. (/)Jackson».Wilkinson,17 Johns. (.7).M.i(key r. (iiay, 2 .Jolins. I!t2. (AjDennisont). Collins, 1 Cow. 111. COYoule «. BrotJiei-toii. l(t .loiuis. .Vnd in Iowa. Moran v. Mnrj)l)y,4» JCi. 1''. ) In North Carolina it has been held that if a claim con- taining but one item exceeds the jurisdiction, it cannot be divided in order to confer it ; but if the claim consists of sev- eral items — each of the items being within the jurisdiction, but the aggregate exceeding it — suit thereon may be main- tained, (r/) In Mississippi costs, damages, and interest are excluded in estimating the jurisdiction as to amount. Jack- son, V. Wlittficld. ;">1 Miss. 202. In Illinois it has been held that a recovery may be had on several fines for violations of an ordinance for the sale of liquors, provided the aggregate does not exceed the limits of jurisdiction. (»■) If the amount claimed is beyond the limits of a justice's cognizance, in general, a circuit court, on appeal thereto, can- not entertain the cause. («) But, in Minnesota, it is too late to object to the jurisdic- (7/()Claik V. Denme, :] Denio, (N. (lepciuleiit debt in orcler to v^ivv Y.) 319. jui isdiction. Peter v. Schlosser. {n)Hevren f). Campbell, lit Vr. 23. SI Pa. St. 4.39. In :Mis.si.«sippi, al«<), (6')Cult)ertsoii i\ Toinlinson, 1 this is the rule, unless the debtor Morris, (la.) 404 ; State?;. liucky, 51 consents. Cox v. Stanton, 58 Cra. Miss. 52^^. 406. (pjBower V. ^IcCormick. 73 Pa. ((/)UoykMi. Hobbins. 71 N. C. 130 St. 427. (/lllarsoldt v. PetersliuriT. fi:! 111. And in that state a plaint ill i^ not 111. allcwed to credit a distinct and in- l^.sjFclt ti. Felt, lit Wis. VXo. JURISDICTION OP JUSTICES OP THE PEACE. 599 tioii of the court to wliich appeal is made, after judgment. Lee y.Panoft, 25 Minn. 128. An offset by plaintiff against an oft'set by defendant is not to be counted in his claim, if distinct and independent, and only put in as an answer to the defendant's offset. (^) Where, in a case of replevin, the value of the property was set forth as within the jurisdiction, and the general issue was joined, and it appeared by the plaintift"'s own testimony tliat the value was beyond it, it was held, in Michigan, that the question was not an open one under the general issue. (?() But, in Mississippi, where an action was brought to recover dam- ages for the maltreatment of a mule, and the plaintiff recov- ered to the full extent of the justice's jurisdiction, and the defendant appealed ; and, on the trial in the circuit court on the appeal, it was shown that the value of the mule was more than had been recovered below, the circuit court dismissed the cause for want of jurisdiction in the justice, which dis- missal was approved by the supreme court, (r) § 403, A jury may be demanded by parties, and where a venire has been issued and served, and the jury fail to appear, it has been held that the justice has no right to resume the (<)T:ilbott «. Robinson. 42 Vt. (Ji)S. (7/)IIen(ler.soii v. Deslie rough, 28 Mich. 170. The plea must be special. And so, where suit is brouirht on a re- plevin bond, and the defence relied on is that the actual value of the property was beyond the jurisdic- tion of the justice, it is held, in Indiana, the plea must be special, hecau.se, in the absence of anything to show the contrary, it will be pre- sumed that the amount was within jurisdiction, (Tyler «>. IJowlus, r)4 Ind. 333,) provided the affidavit in the original cause stated the value, and within tlie jurisdiction. Ibid ; Darling v. Conklin, 42 Wis. 47.S. (») Askew V. Askew, 4it Miss. 307. And so, in Illinois, where a jury finds the value of the property in a replevin suit to be more than the jurisdictional amount of $2o0, it ousts the jurisdiction, and judgment must be given for the defendant ; and even on appeal to a superior court, where the trial is de novo. Kirkpatrick v. Cooper, 89 111. 210. The rule is, in general, that where a justice has not juri-sdiclion an ap- peal cannot confer it on the supe- rior court in the cause pending. Allen »'. Belcher. 3 Gil. ^M: Peopli- f). Skinner, 13 111. 287; Downing '). Florer, 4 Vo\. 210. Hut it is diller- ent in Alabama, where the trial in the appellate court is de novoy and the action is for tiie recovery of a chattel in specie. Gla/.e «. Blake, "<6 Ala. 385 ; overruling former cases. This .seems to me the better rule. 4^00 JURISDICTION OF JUSTICES OF THE PEACE. cause juid try it himself, against objection, (/f) unless the venire was delivered to the party demanding the jury, instead of to the officer, and the party fails to return the venire, in which case his fraud in suppressing the writ is held to operate as a waiver of the demand for a jury, so that the justice may proceed to hear the cause himself. (r) If a venire is handed to an officer, who fails to return it, another may issue, unless the demand- ant goes to trial, which will operate as a waiver of trial by Jury-(^) A justice cannot, however, challenge the panel, of his own motion, and issue a new venire, when no exception has been taken by either party. (>) Nor can he withdraw a case from a jury to which it has been submitted ;(«) nor can he set aside a verdict as against the evidence; (6) nor arrest judgment, or grant a new trial. (c) But, in New York, a justice ma}-, on request of a jury, after they have retired, give them further instructions on the law of the case, provided the parties are i^resent, or have an op- portunity of being present. (tZ) § 404. A judgment, to be valid, must, in general, be imme- diately entered. (>) But, jurisdiction having been acquired, it will be presumed that judgment was entered directly on final submission, in the absence of an affirmative showing to the contrary. Moore v. Reeves, 47 la. 30. And it seems proper that, in a difficult case, a reasonable time should be allowed for consideration and advisement, and that a justice may enter his judgment at a subsequent day, giving the parties due no- tice of his action. Reeves v. Davis, 80 N. C. 212. But the same strictness does not apply to the proceedings while in pro- gress, and it has been held that where a cause was adjourned until 1 o'clock p. m., of a day certain, and on that day the (/r)Sebring v. Wbet-dou, S Johns. (6)Vau Valkenljurgh v. Evertson, 400. 13 Wend. 76. (j)('oon 1'. Snyder, 19 .Johns. 384. (r)Felter r. Mulliner, 2 .Tohn.s. (//)Blanchard v. Riohh', 7 Johns. 181; Helmick c. Johnson, 1 Morris, 30,-. (la.) 89. (?)Cross V. Moulton, 15 Johns. 469. ((f)liogers v. Moulthrop, 13 Weud. (a) Young v. Hubbell, 3 Johns. 430. 274. (e)Sibley v. Howard, 3 Denio, (N. T.) 172. JURISDICTION OF JUSTICES OF THE PEACE. 401 justice is detained by official duties until 5 o'clock p. m. of that day, he may, at the latter hour, proceed to try the cause, even although the defendant has left the place of trial. (/) § 405. One justice cannot take the recognizance of a pris- oner under a mittimus of another justice, on the way to prison, (^) nor afi;er he has been placed in the prison. (/*) Nor can a justice issue an execution on the judgment of another who still remains in office and retains his docket, (i) § 406. I do not enter into any full investigation of the sub- jects of the jurisdiction of justices of the peace, since there is no well-defined limit as to what powers a legislature may bestow upon them. Once, in New York, a justice even had jurisdiction of an action on the case for enticing away the wife of the plaintiff ; (J) and, also, admiralty jurisdiction — the law providing that he might entertain "all actions for as- sault and battery, or false imprisonment, done or committed by any master or commander of any ship or vessel, in any merchant service, upon any officer, seaman, or mariner, on the high seas, or in any foreign port or place where such ship or vessel may then be, of which the ordinai'y courts of law now have cognizance, notwithstanding the damages sustained or demanded by reason thereof shall exceed fifty dollars" — although he had not jurisdiction of such assault happening in any port of the United States. (^•) A jurisdiction so capri- cious cannot be defined or explained. I suppose, however, it is safe to say that in no instance has a justice of the peace jurisdiction in a slander or libel case, or a case of breach of promise of marriage, or divorce, or for the final trial of felonies. (/)Hunt «. Wickwiie, 10 Wtiiid. {g)^[atc v. Berry, s Gi-cciil. 179. 102. However, it .seems a justice (/i)Cummc)iivv. «. CaniuLi, i;J Pick, loses jurisdiction by an adjourn- SB. ment unless his docket shows the (^■)Cliffo^d v. Cabincss, 1 Dana, day, and hour, and place to which (Ky.) 334. the cause is adjourned Braiirn- (j)Chase «. Hale, s .lolins. 4(11. stead V. Ward, 44 Wis. 591. ^A^viug v. Parks, I'.l Johns. 375. v.l— 20 40'2 COMMISSIONERS OF HIGHWAYS EMINENT DOMAIN. CHAPTEE XI. COMMISSIONERS OF HKIHWAYS ; AND HEREIN OF EMINENT DOMAIN. § 407. Special judicial powers. 408. Kecoid evidence of jurisdiction. 409. Statutes mu«t be .strictly pursued, 410. Eft'ect of exceeding jurisdiction. 411. Void and voidarjie acts. 412. No pcjwer over navigable streams. 413. Highwaj'^ crossing railroad. 414. Altering highways. 415. Ellecl of wrongfudy laying out highway. 416. Estoppel as to jurisdiction. 417. Terms. 418. Notice. 419. Disqualifications. 420. Nature of eminent domain. 421. The taking of property. 422. The primary right is in the legislature. 423. Province of a jury as to the taking. 424. Public use — how decided. 425. What a public use is. 426. Delegation of power strictly construed, 427. Discretion of officers after power delegated. 428. Presumptions as to the exercise of jurisdiction. 429. Kinds of property suliject to the right. § 107, Bodies may be constituted ad libitum, having special judicial powers, in regard to specific sub,ects. Perliapstbe most important of these are commissioners of highways, w'hose powers, however, are sometimes assigned directly to county courts, and who, in such case, retain only ministerial functions. And, in Maryland, it has been held that courts exercising these powers do not hold them by virtue of their general authority, as courts of law, but bj' virtue of a special delegation, and, moreover, that a writ odf error will not lie to a court vested with special jurisdiction, and not proceeding according to the forms of the common law, although courts COMMISSIONERS OF HIGHWAYS EMINENT DOMAIN. 403 will incidentally inquire into the validity of the judgments of special jurisdictions whenever such inquiry becomes neces- sary in the ordinary exercise of their powers. (a) And it has been held, also, that the strictest technical exactness is not requisite, in the proceedings, as to terms and language em- l^loyed, provided the intention is plain, and the commission- ers have jurisdiction. And so, where the word "road" instead of "highway" is used in the record, or the petition, the juris- diction does not, therefore, fail ; nor if the description of the road located should be different from the language of the petition, if it is substantially the same.(/>) § 4:08. However, the jurisdiction, and the facts conferring it, must be shown on all the records. And, otherwise, pro- ceedings must be quashed. Shtie v. Conir, 41 Mich. 638; Milton V. Coinr, 40 Mich. 229. And one of the most im- portant jurisdictional facts may be the presentation to the court, or commissioners, of an application made by a qualified person. (c) Yet sometimes proof may be admitted to show the jurisdiction, or the want of it,(c) but the rule is as just stated, that the records should show it; although, especially where commissioners are not required to keep a record, parol evidence of the action may be given, and proof that they met and conferred, and agreed upon a plan, and delegated power to one of their number to carry out the plan, is enough to sustain the defence of who acted under such commissioner. ((/) § 409. But the mode prescribed by statute must always be pursued substantially, if not literally, or else the proceeding will be coram non jadice and void ; and where a board is not empowered to lay out a road of undefined width, an order establishing such a road is null, and of no effect. (e) How- ever, when jurisdiction once attaches, subsequent error will not invalidate, except that the error may reverse in the proper manner. The principle is thus stated : "Unless the com- missioners had jurisdiction to authorize the commencement (r^Savage Mfg. Co. v. Owings, 3 (<-)IIaiTington v. People, 6 Baii). Gil. 407. 611; partly overruled in Gould v. (/>)\Yiii(i]iain v. Coni'rs, 2G Me. Glass, 19 Barb. IT.). 40'.), ((Z)Smith v. Ileliner, 7 Barb. 422. (r) White V. Conover, r> JJlackf. 4U2. 404 COMMISSIONERS OF HIGHWAYS EMINENT DOMAIN. of their proceedings they would be void. A general jurisdic- tion merely, by law, over the subject-matter is not enough. They can only have it, in the particular case in which they are called upon to act, by the existence of those preliminary facts which confer it upon them. Their doings are ineffectual, unless they have power to commence them, and may, in such cases, be avoided collaterally. But having jurisdiction, if their subsequent acts are erroneous, they are valid until vacated by certiorari. Baker v. Rtinneh, 3 Fair. 235 ; Good- win V. Halloicell, Id. 271; 12 Mete. 208; Sumner v. Porker, 7 Mass, 79; Haskell v. Haven, 3 Pick. 404; Wales \. Willard, 2 Mass. 120; Loring v. Bridge, 9 Mass. 124; Davell v. Davell, 13 Mass. 264; Frumpton v. Pettis, 3 Lev. 23; the case of The Marshalsea, 10 Co. 68." § 410. Exceeding jurisdiction, in any particular, may viti- ate the whole proceedings; and must do so, if the excess is not separable. Where county commissioners laid out a turnpike, as a highway, and thereon required a town to tend the draw in a bridge over a navigable stream, and keep lights on the bridge, as the turnpike company had been required to do by their charter, the requirement was held to be fatal to the whole proceedings. The court remarked: "The commis- ioners surely had no authority to impose this burden on the town. Towns cannot be required to do an}' more in regard to roads than they are required by statute to do. Their duties in this respect are wholly statutory, and there certainly is no statute requiring them to tend a draw in a bridge over a navi- gable river. A town may l)e required to make a road, and every town is obliged to keep the highways within its bounds safe and convenient for travelers. All the duties of towns, in regard to roads, relate to the travel along the highway; but tending the draw in this bridge was not for the benefit of the travel on the road, but wholly for the convenience of the navigation of the river. The law imposes no such burden on a town for the benefit of navigation, and no such burden can be lawfully imposed by the commissioners. The laying out of the whole road being one entire act, and the part imposing on the town of Braintree the dutv of tending the draw in the COMMISSIONERS OF HIGHWAYS EMINENT DOMAIN. 405 Lridge being unlawful, and being a material part, which can- not be sejDarated from the rest, the w^hole laying out is in- valid. "(/) And thus the extraordinary spirit of enterprise in that board was unceremoniously squelched forever. § 411. Yet the distinction of void and voidable must always be borne in mind, and is strictly applicable herein to commis- sioners, as well as to the ordinary courts. Thus declared the the New Hampshire court : "We find it difficult to conceive that the character of proceedings, as judicial or otherwise, can depend upon the office or station of those who take part in them. If a power is judicial, when it is exercised by one set of men, it can hardly have a different character when similarly exerted by others. Wherever one or more persons are authorized, or required, to call parties before them, to hear allegations, and their proofs, and pronounce a determi- nation between them — to make a decision by which the rights of parties are to be bound — that power seems to us to be judi- cial, and their i^roceedings are judicial. Such seems to us to be the power exercised under our statutes by the selection of towns in laying out highways. * * ***** "Inferior courts of special jurisdiction may lack the power to issue the process, or to adopt the course of proceedings to which they have resorted. Their modes of proceeding may be precisely prescribed, and if they deviate from those modes their proceedings may be invalid, void or voidable on this account. But they are void, if so, only to those who have cause to complain on account of them. They are voidable only by those who are injured, and the exceptions may be waived and the proceedings confirmed by those who alone have cause of complaint. Those persons as to whom the process and proceedings have been regular can take no excep- tion because others have not been notified, or that they have not been notified in a legal and proper manner. Irregulari- ties, which is but another word for illegalities, in the pro(;eed- ings in an action, furnisii, everywhere, ground of exception to the party whose rights are affected by them; and the irreg- nlar proceedings are at once set aside on motion of the proper (f)lnluil)itaiits, etc., v. County Com'rs of Norfolk, 8 Ciisli. 540. 406 COMMISSIONERS OF HIGHWAYS EMINENT DOMAIN. parties. But it is a general rule that if a party who has ground to move the court to set aside any process or proceed- ing of any kind, neglects to make his ajiplication in a rea- sonable time after the facts have come to his knowledge, he is deemed to waive the exceptions by the delay, and will be forever precluded to make the objection afterwards. There are exceptions to thio rale, as where a statute declares a proceeding void, or authorizes particular process on certain conditions, which are not complied with, in which cases there is no waiver by delay. * * * * * * No objection being suggested to the general jurisdiction of the selectmen to lay out highways within their town, the illegalities charged in this case all fall within the last two classes of exceptions — one of jurisdiction over the parties from neglect to give them notice, and defects in the course of proceedings afterwards, in the improper assessment of damages as to some parties, and neglect to assess any damages in the case of others. These exceptions, we think, do not render the laying out absolutely void, though they render them liable to be avoided. Until they are so avoided they remain valid as to some persons, and for some purposes, and are capable of confirmation. They are not impeachable by everybody, nor open to be assailed by those wdio have no interest in the matter, nor by those as to whom the proceedings have been regular; nor by those who have waived their exceptions, and thus confirmed the laying out, either directly or incidentally. In such cases we have, therefore, to inquire whether the party who raises the question is one who has a right to complain — whether the cause of objection which he assigns affects him or bis inter- ests ; and, if it did once affect him, whether he has waived the exception by the jiart he took in the proceedings, or has since otherwise waived or released it, and has thus disabled himself to raise the objection. ***** \Ye ^q j^q^ understand that any writing is ever necessary to constitute or prove a waiver of exceptions of this kind."(g) § 412. In Maine it is held, and no doubt this is the general rule, that without a special statute commissioners have no (j')State V. Richmond, 6 Foster, 235-2i7, paxsim, and cases cited. COMMISSIONERS OF HIGHWAYS EMINENT DOMAIN. 407 jurisdistion to locate highways over navigable streams, or arms of the sea, and construct bridges over them, so as to obstruct na^•igation ; and that, if they do so, any person im- peded thereby may remove the bridges. (/<) And wliere such a highway and bridge were located over a creek navigable by canal boats and gondolas the case was held to come within this principle, and the person removing the bridge, being indicted, was discharged by the supreme court. And, in a similar case, in Massachusetts, the court, deciding the same way, remarked: "There can be no doubt, therefore, that, by the principles of the common law, as well as by the imme- morial usage of this government, all navigable waters are public property, for the use of all the citizens, and that there must be some act of the sovereign power, direct or derivative, to authorize any interruption of them. The legislature may, without doubt, by a general law, delegate to the magistrates of a county, or to any other body, the power of determining when public convenience requires that a bridge shall be thrown over a creek or a cove ; but, until they have made such dele- gation, in express terms, it is a branch of sovereign power to be exercised by the legislature alone. Upon this ground it was determined, in the case of Commonwealth v. Coombs, that the court of sessions, to which body was given, by a general law, the power of laying out public ways, had not power to lay out such a way over a navigable river so that the river might be obstructed by a bridge. The statute giving power to the court of sessions, it is there said, must have a reason- able construction. 'A navigable river is, of common right, a public highway, and a general authority to lay out a new liighway must not be so extended as to give a power to ob- stmct an open highway already in the use of the public' And in the case of the Inhabitants of Arundell v. McCulloch the same principle is recognized. The court say: 'It is an unquestionable principle of the common law that all naviga- l)le waters belong to the sovereign, or, in other words, the public; and that no individual or corporation can appropriate them to their own use, or confine or obstruct them so as to (/;)Statc f). Antlioine, 40 3le. 435. 4-08 COMMISSIONERS OF HIGHWAYS EMINENT DOMAIN. impair the passage over them, without authority from the legislative power. It is upon this principle that so many acts of our legislature have been passed, authorizing the building iK bridges over various streams and rivers within the common- wealth.' ''{() And the special act must not only confer authority to build a bridge, but it must confer that authority directly on the commissioners, since the statute must be strictly pursued. 80, where, by a special act, the city of Belfast was authorized to erect and maintain a free bridge across the Passaggassaw- akeag river — the bridge to be built of suitable materials, and to be so constructed as to be safe and convenient for public travel, and to be provided with a draw of sufficient w'idth for vessels to pass and repass — and where the municipal officers of the city refused to act therein, a petition was presented to the county commissioners to la}' out the way and bridge, which they did. It was held that the act, neither in terms nor hy implication, gave them any authority to act in the matter, and they had no jurisdiction. (j) The same principle is also extended to the location of a highway upon a beach forming one side of a harbor, and which, though not within the ebb and flow of ordinary tides, iniaiJed b}^ storm or wind, is yet almost always covered by spring-tides, and jjart of whicii is often useful to vessels drift- ing from anchorage in the harbor. Commissioners cannot make the location, if it probably, though not necessarily, would injure the harbor for the purpose of navigation, or interfere with public measures for its protection and improvement. (A;) i^ 413. Where, under statute, in Massachusetts, an adjudi- cation of commissioners la.ying out a highway across a rail- road fails to state whether it is to be carried over or under, or on a line with, the railroad, or to show that special notice was given to the railroad company, it is erroneous, and will be quashed on certiorari, and that, too, even if the railroad cor- poration actually appeared and was heard before the commis- (/)Ci>iuni()invfaltlu'. Charlestown, (/llnhabitants, etc., «. County 1 Pick. 1..-, Coin'rs of Waldo Co. 52 Me. 529. (/i)lnlialHtants, etc., v. Com'rs of f]ssex, 5 Gray, 451. COMMISSIONERS OF HIGHWAYS — EMINENT DOMAIN. 409 «ioners.(Z) The commissioners have final jurisdiction of the question, whether the highway shall be over, under, or on a level with the railroad. (mj § 414. In Wisconsin it is held that supervisors, in altering a highway, on proper application, have a discretion to change the route from the proposed line, if satisfied that the pubHc interests would be subserved thereby. (?ij And they may re- voke an order for a highway if they find, on reconsideration, that the public interests would be thus better subserved, (Nelson v. Goodi/koontz, 47 la. 32;) as, for instance, if the construction will be too costl}' from payment of damages or otherwise. Peojilc v. Foos, 88 111. 141. And so they may discontinue a road, [Hatch v. Superv. 56 Miss. 26 ;) or with- draw a special privilege granted by them to an individual. Teague v. Same, Id. 29. § 415. It is held in New York that, unless a highway has been laid out according to the statute, commissioners are not even authorized to make an order for the removal of encroach- ments therein, (o) § 416. A town may be estopped from disputing the juris- diction, where, by default, it virtually confesses the jurisdic- tional allegations of a petition. On this the New Hampshire court say: "The jurisdiction of the court of common pleas over petitions for the laying out of highways is limited and special, depending upon particular exigencies described in the statute. In such cases a well-founded and established rule of pleading requires that the petition to the court should con- tain a statement of all the facts necessary to give jurisdiction to the court, and if it fail to do so the proceedings may be suppressed at any stage. These allegations, being material, must not only be stated, but, if not admitted, proved. Now, it is perfectly settled, by numerous autliorities, that a default is, in eft'ect, a confession, by the party suifering it, of all the {l)R. 11. V. Com'rs of Plymouth, (n)Neis v. Frawzen, 18 Wis. 537. 11 Gray, 512. (o)Chusty V. Newton, 60 Barb. {in)\i. K. V. Middlese.\ Co. 1 Allen, 332. o24. 410 COJniISSIONERS OF HIGHWAYS EMINENT DOMAIN. matericil allegations in the l)ill, declaration, or petition by which the cause of action, or the plaintiflf's case, is exposed upon the record, the denial of any one of which would render V.ie proof of it necessary on the part of the phaintiff, or actor, to establish his claim to the interposition of the court, which he has invoked. In this case it is not disputed that enough was stated in the petition to show that the court of common pleas had jurisdiction. What was stated was admitted by the default. It would not be reasonable, nor would it be con- formable to the well-established technicalities of the law, to suffer a cause which has proceeded regularly to the point of deciding the merits of the controversy, to be embarrassed or retarded by permitting allegations to be made inconsistent with what has been admitted, and which the defendants might have made at a stage of the proceedings when their proof might have prevented a great amount of trouble and expense which the parties have since incurred, "(jj) § 417. The omission to hold a regular term, — when the commissioners do business at terms, — and thereby passing over a petition until a second term, works a discontinuance of the proceedings pending thereon, and wholly dej^rives the- board of jurisdiction. (^) And commissioners may lose juris- diction by adjourning beyond the time limited by statute for acting on an application. State v. Castle, 44 Wis. OTl. The court of Maine said, in such a case : "Nor is it any sufficient answer that the county commissioners neglected to hold the next regular term, as established by statute. No reason is assigned for not doing it. Their neglect of duty in this respect cannot render valid their violation of law in making their return at the w^rong time. If they could, with- out reason, omit to hold one term, they might any number.. This would leave it to their discretion to hold a term or not."(r) But, in Illinois, it is held that a failure to adjourn from day to day, during a session, as required, is not juris- (;.) Huntress v. Efflnghani, 17 X. ((/jinhahitants, etc., v. Com. of II. '),-;'). Aroostook Co. 59 31e. 392. '/) Allison V. Com. 54 Dl. 172. COMMISSIONERS OF HIGHWAYS EMINENT DOMAIN. 411 dictional, but only an irregularity, which is waived by an appeal to supervisors from the judgment rendered. (s) § 418. A notice to interested parties is jurisdictional, — in the same manner as process in ordinary actions, — and the notice is strictly construed, so that if it be given only to own- ers of lots and lands, over and through which a street will run, when opened, it will not bind a person off the line of the street. (?) § 419. Like any other judges, commissioners may be dis- qualified from acting by interest, and the principle here is more rigidly applied than usually with judges in the ordinary courts. It has been held that where a single commissioner of the board was a stockholder in a tax-paying corporation in the town he was disqualified; and, having acted, the re- port of the commissioners laying out the highway was there- fore set aside. (w) And, also, where petitioners furnished liquors to the commissioners, of which the latter drank during the sittings, it was declared to be an abuse for which a re- port would be set aside, without inquiry as to hoM' far the commissioners were affected by it.(t;) § 420. The right of eminent domain being intimately con- nected with the laying out of highways, as well as other pub- lic improvements, I deem it not inappropriate to set out, briefly, the jurisdictional principles therein involved. I think the leading outlines of the feudal system are very strongly marked in it, although writers seem to refer it generally to "an authority existing in every sovereignty. "(?f) The feudal (.s) Kidder «. Peoria, 29 111. 77. Casllo, -44 Wis. 071. The party eu- (<)Petition of New Boston, 49 N. titled to notice is the legal owner, H. 328; Frizell «. Rogers, 82 111. and not a mere equitable owner. 109. Moreover, if a statute requires Hidden v. Davidson, .'Jl Cal. i;>}?. notice to be given that commission- .Vnd this is to be determined, iisu- ers vpill meet at a certain time and all}-, bj- the record title. Wilson v. place, to decide on an application, Hathaway, 42 la. 173. it is not a compliance with the stat- (/ONcnvport Highway, 48 N. II. ute to give notice that they will 433. meet at a certain time and place to {/;)Cooley"s Const. Lim. .')24. consider such application. State v. (/rjSurocco v. Geary, 3 Cal. (j9. 412 COMMISSIONERS OF HIGHWAYS EMINENT DOMAIN. features, of course, are modified and somewhat softened, but yet this power includes — (1) The original fee in the sovereign; (2) the derivative nature of the subject's title; (3) the com- plete independence therein of the subject who is sovereign of his own domain; (4 the condition of assistance on which all the subordinate feudal tenures depended. One modification of these is the necessity of compensation for the property taken, to be judged usually by a jury. In Minnesota a jury is dispensed with. Brugrjerinan v. True, 25 Minn. 123. § 421, I select two topics as embracing the jurisdictional basis, namely : the necessity of the taking, and the purpose thereof. Occasionally a question maj' arise as to what a taking is. It does not always include an actual possession, but may take place merel}" by the vesting of a right to take immediate possession; as, for instance, where a municipal corporation, b}' ratifying an assessment of damages, has acquired a vested right, at will, to enter on land and use it as a street, it is regarded as a taking in the sense of the con- stitution. Fink V. Xeivarh\ 40 N. J. 11. As to compensation, and jury investigations tbereon, 1 regard these as executory rather than jurisdictional, and therefore as outside the limits of this work. First, as to the necessity of taking. Not all necessary taking or destruction of property falls within the range of this power, however. For example, that which is made necessary by public perils does not, as the destruction of buildings in order to arrest the progress of a fire. This has been held to be for individual benefit, or for the city, and not the sover- eignty, and the private rights of the individual must 3'ield to the general interests of safety to society, (a;) and that without compensation. Also, this has been declared to be merely a regulation of the right, which even individuals have, to de- stroy private propert}' in cases of inevitable necessit}'. In New Jersey, however, it was, in 1848, declared to be an exer- cise of eminent domain, to so destroj' property, and that, therefore, the destruction ought to be compensated. (i/) But, (•OUussell IK Mayor, etc., of New (,y)Hale & Home v. Lawrence, 1 York, 2 Denio, 461. Zahr. 715. COMMISSIONERS OF HIGHWAYS EMINENT DOMAIN. 413 in 1851, this decision was virtually overruled in cases arising out of the same calamity. (^) The true principle, undoubtedly, is that the necessity in eminent domain is not a necessity of destruction, but of im- provement ; not of public .safety merely, but of public use, for the benefit of the sovereignty at large, directly or indirectly. "The right of eminent domain," say the Indiana court, "or that right by which the sovereign power, for public uses, takes and appropriates the property of the citizen, is one which should be watched with great vigilance. It should never be exercised except when the public interest clearly demands, and then cautiously and in accordance with law. The right is one which lies dormant in the state until legis- lative action is had pointing out the occasion, mode, condi- tions, and agencies for its exercise. "(a) § 422. The legislature holds the primary right of eminent domain, but can, and usually does, delegate its power; and it may do this to municipal corporations, or even to private corporations, in a measure, limited by the extent to which the use to be made of the improvement is a public use, which we will presently define and explain. And the power may be, of course, given in the charter of such private corpora- tion. Hand Gold Minimi Co. v. Parker, 59 Ga. 419. § 423. But, in some states, a jury is to pass upon the necessity of a tak'tng before a jurisdiction attaches, and where such a matter is referred to a jury they must find that the taking is for the public use and benefit ; that the work itself is one of public importance, and that the particular land is needed for the construction of the work. (6) And a finding that "it was and is necessary to take and use said land for (j) American Print AVorks v. Law- Association v. Com'rs, 34 Mich. .30; rence, 3 Zabr. 590. Wliislcr v. Com'rs, 40 Mich. r)01 ; (ajAlIen «. .Tones, 47 Intl. 442. State ». Pluinfield, 41 N. J. 138. It And accordingly the powershould seems to be an anomaly, in New be .strictly limited to necessity, and .Jersey, that a railroatl company can tlie proeeedings should conform, in lend its charter-condemning power all particulars, with the .statutory to another railroad company. Coc requirements. Dayton Mining Co. v. R. H. Co. 31 N. .1. Eip 147. V. Soawcll, 11 Nev. .394; R. R. Co. (ft) Railroad f). Clark, 23 Mich. 519. «. -Mender, .5n Tex. 77; l)ctrf)it, etc, -il-l COMMISSIONERS OF HIGHWAYS EMINENT DOMAIN. tlie purpose of operating and constructing said railway by said company," has been held insufficient. (c) iind so, where proceedings are instituted to obtain water-power to operate a manufactory, a finding that the taking is to be for the pub- lic use is fatally defective. (d) And, where the matter is to be thus decided, I do not know how to justify the declaration of the New York court of appeals that the "necessity for appropriating private property for the use of the public, or of the government, is not a judicial question," notwith- standing "the power resides in the legislature, and may be exercised by means of a statute wliich shall at once designate the property to be api^ropriated, and the purj)0se of the appropriation," or delegated to public officers, or private cor- porations. (^) However, the court probably means no more than this : that "it is not necessary for the legislature, in the exercise of the right of eminent domain, either directly or indirectly, through public officers or agents, to invest the proceeding with the forms or sul)stance of judicial process, "(y) without denying that this may, nevertheless, be done in the exercise of legislative discretion, so that quoad hue, to the point of the decision on examination, the proceedings are judicial. And so notice to owners may be requisite in the commence- ment of proceedings, (^) so as to allow them to "intervene a,nd participate in the discussion before the officer or board." In this view of the case, the New York decision rests on the ground, merely, that the legislature, being under no obliga- tion to make the determination judicial, had not actually done so. § 424. It is imperative that the taking be for a public and not a merely private use. Thus the limit to the j^ower granted to railroad corporations to take lands for railroad purposes, — tracks, buildings, etc., — in regard to present and prospective need, is the reasonable necessity of the corpora- tion in discharging its duty to the public. In re N. Y. C, etc., (r)Kailroadf;. VanDrelle,24Mich. (<-)People v. iSmith, 21 IN". Y. oOS. 4(t'.i. (/)Ibid, 599. (^(')McClary «. Hartwell, 25 Mich. (£?)Smitli v. Railroad, 67 111. 194. 130. COMMISSIONERS OF HIGHWAY:^ EMINENT DOIUAIN. 415 Pi. Co. 77 N. Y. 248. And the determination of this question is expressly held, in Vermont and Massachusetts, not to be exclusivelj^ legislative, but judicial, as to particular cases. In Vermont the court says: "The important question in this case relates to the validity of the several acts of the legisla- ture, upon which tliese proceedings wholly rest. The legisla- ture is limited in its powers by the constitution of the state, and whatever it does in excess of the limits is nugatory. The first article of the first part of the constitution declares ac- quiring, possessing, and protecting property to be among the natural, inherent, and inalienable rights of persons. The second article of the same part declares that private property ought to be subservient to public uses when necessity requires it ; but that, whenever taken for the uses of the public, the owner ought to have an equivalent in money. These decla- rations together are equivalent to a declaration that jarivate property ought, upon compensation made in money, to be subservient to public uses when necessity requires it, and to no other uses, even though necessity should require it, and compensation should be made. [Of course, it is always re- quisite that compensation be made, or at least secured, be- fore possession be taken. Sanborn v. Belden, 51 Cal. 20S; Jersey City v. Fitzpatrick, 30 N. J. Eq. 99. In x\rkansas the existence of an adequate remedy to the land owner will ])er- mit the entry of a railroad company before the assessment and payment of compensation. R. K. v. Turner, 81 Ark. 495. A preliminary attempt to agree on the compensation with the owner, and a failure therein, may be required to be alleged as a jurisdictional fact in proceedings for condemna- tion. In re Lockporf, etc., R. Co. 77 N. Y. 557. If an owner agrees to claim no damages, it is binding on him. Coonilis v. C'onirs, 68 Me. 484. If an agreement provides for an ex- orbitant compensation for lands taken to build a railroad, and the corporation takes possession before payment, and the corporation becomes insolvent, and its affairs pass into the hands of a receiver, and afterwards the owner sues to recover the amount agreed om, it is held, in New Jersey, that the court has jurisdiction to reduce the amount to a reason- 416 COM.MISSIONERS OF HIGHWAYS EMINENT DOMAIN. able and just estimate. Coe x. R. li. 30 N. .J. Eq. 21. In condemnation proceedings, compensation is to be estimated as of the time of taking possession, and cannot, therefore, in- clude subsequent improvements made by the taker thereon. Price V. Ferry Co. 31 N. J. Eq. 31.] Whenever the use is public the legislature has full power to determine whether a necessity for taking for such use, in any classes of cases, exists or not^ and the legislature has the sole prerogative of determining a& to the propriety of exercising the power it has upon the neces- sity that does exist in any class of cases. But the legislature has not power to so detennine that a use is a public use,, as to make the determination conclusive. The attemj^t of the legislature to exercise the right of eminent domain does not, therefore, settle that it has the right. But the exist- ence of the right in the legislature, in any class of cases, is left to be determined under the constitution by the courts. "(/j) And the Massachusetts court say. on the same subject: "We are met at the outset with the suggestion that it is the exclu- sive province of the legislature to determine whether the pur- pose or obiect for which propertj- is taken is a public use, and that it is not within the province of the judicial department of the government to revise or control the will of the legisla- ture upon the subject, when expressed in the form of a legal enactment. But this position seems to us to be obviously untenable. The provision in the constitution that no part of the property of an individual can be taken from him or ap- X^lied to public uses without his consent, or that of the legis- lature, and that, when it is appropriated to public uses, he shall receive a reasonable compensation therefor, necessarily implies that it can be taken only for such a use, and is equiv- alent to a declaration that it cannot be taken and appropri- ated to a purpose in its nature private, or for the benefit of a few individuals. In this view it is a direct and positive lim- itation upon the exercise of legislative power, and any act which goes beyond this limitation must be unconstitutional and void. No one can doubt that if the legislature should, by statute, take the property of A. and transfer it to B. it would (A)Tyler v. Beecher, 44 Vt. 651. COMMISSIONERS OF HIGHWAYS EMINENT DOMAIN. 417 transcend its constitutional power. In all cases, therefore, where this power is exercised, it necessarily involves an inquiry into the rightful authority of the legislature under the organic law. "But the legislature has no power to determine finally upon the extent of their authority over private rights. That is a power, in its nature, essentially judicial, which they are, by article thirtieth of the declaration of rights, expressly for- bidden to exercise. The question whether a statute, in a par- ticular instance, exceeds the just limits prescribed by the constitution, must be determined by the judiciary. In no other way can the rights of the citizen be protected, when they are invaded by legislative acts which go beyond the lim- itations imposed by the constitution. But it is to be borne in mind that, in determining the question whether a statute is within the legitimate sphere of legislative action, it is the duty of courts to make all reasonable presumptions in favor of its validity. It is not to be supposed that the law-making power has transcended its authority, or committed, under the form of law, a violation of individual rights. When an act has been passed, with all the requisites necessary to give it the force of a binding statute, it must be regarded as valid, unless it can be clearly shown to be in conflict with the con- stitution. * * * Besides, it is a well-settled rule of expo- sition that, in considering whether a statute is within the limits of legislative authority, if it may, or may not, be valid, according to circumstances, courts are bound to pre- sume the existence of those circumstances which will give it validity, "(i) From these decisions, these deductions are to be drawn, namely: (1) From the Massachusetts case, that the courts are to decide whether a particular statute provides for a pub- lic use, in accordance with the constitution, or not; (2) from the Vermont case, that the legislature may define public uses in a general way, and in regard to classified cases, l)ut it belongs to the courts to apply it, in any particular case, in the same manner that other judicial statutes are carried into (t)T;ilbot V. Hudson, IG Gniv, 422 V. 1—27 4:18 COMMISSIONERS OF HIGHWAYS EMINENT DOMAIN. pratitical effect; so that hereby it is declared that the legis- lative discretion passes under judicial supervision and action. For a discussion of the relative position of the legislature and courts herein, see Broicn \. Keener, T-i X. C. 718; R. R. V. Town of Lake, 71 111. 333. § 425. As to what is a j)uhlic use, there is room for a con- trariety of opinions, because, although, "in many cases, there can be no difficulty in determining whether an apj)ropriation of property is for a public or a private use — as, if land is taken for a fort, a canal, or a highway — it would clearly fall within the first class; if it is transferred from one person to another, or to several persons, solely for their peculiar benefit and advantage, it would as clearly come within the second class; yet there are intermediate cases, where public and private interests are blended together, in which it becomes more difficult to decide within which of the two cases they may be properly said to fall. There is no fixed rule, or standard, by which such cases can be tried and determined. Each must necessarily depend upon its own peculiar circum- stances. * * * * "^y^ And there can be iiu difficulty in deciding that land taken for a public school-house is taken for a public use. Smit]i v. School District, 40 Mich. 143. "It has never been deemed essential that the entire com- munitj', or any considerable portion of it, should directly en- joy or participate in an improvement or enterprise, in order to constitute a public use within the true meaning of these words as used in the constitution. Such an interpretation would greatly narrow and cripple the authority of the legislature, so as to deprive it of the power of exerting a material and bene- ficial influence on the prosperity and welfare of the state. In a broad and comprehensive view, such as has been hereto- fore taken of the construction of this clause of the declaration of rights, everything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of an}' considerable number of the inhabitants of a sec- tion of the state, or which leads to the growth of towns, or the creation of new sources for the emiiloyment of private cap- (j)Talbot V. lludsou, lU Gray, 423. COMMISSIONERS OF HIGH\VA\\->— EMINENT DOMAIN. 411) ital and labor, indirectly contributes to the general welfare and to the ijrosperity of the whole community. It is on this prin- ciple that many of the statutes of this commonwealth, by which private property has been heretofore taken and appro- priated to a supposed public use, are founded. Such legisla- tion has the sanction of precedents coeval with the origin and adoption pf the constitution, and the principle has been so often recognized and approved, as legitimate and constitutional, that it has become incorporated into our jurisprudence. One of the earliest and most familiar instances of the exercise of such power under the constitution is to be fcmnd in Stat. i7l>5, for the support and regulation of mills. By this statute, the owner of a mill had j^ower, for the purpose of raising a head of water to operate bis mill, to overflow the land of proprie- tors above, and thereby to take a permanent easement in the soil of another, to the entire destruction of its beneficial use by him, on paying a suitable compensation therefor. Under the right thus conferred, the mere direct benefit was to the owner of the mill only. Private property was, in effect, taken from one individual and transferred for the benelit of another, and the only public use which was thereby- subserved was the indi- rect benefit received by the community by the erection of mills for the convenience of the neighborhood, and the general ad- vantage which accrued to trade and agriculture by increasing the facilities for traffic and the consumption of the products of the soil. Such was the purpose of this statute, as appears from the preambles to the provincial acts of 8 and 13 Anne, from which the statute of 1795 was substantially copied. It is thereby declared that the building of mills has been ' serviceable for the public good and benefit of the town, or considerable neighborhood.'* In like manner, and for similar purposes, acts of incorporation have been granted to individ- uals, with authority to create large mill powers for manufac- turing establishments by taking private property, even to the *It is certain tliat, in the present mills is not a pulilie use, an.l enn- advanced condition of facilities for deninatioii cannot take place there- conveying and manufactnring grain for. into breadstufEs, the erection of 420 COMMISSIONEKS OF HIGHWAYS KMINENT DOMAIN. extent of destroying other mills and water privileges on the same stream. Boston <£ Rochurij Mill-dam v. Xeionan, 12 Pick. 467; Hazen v. Essex Co. 12 Cash. 478; Commonw. v. Essex Co. 13 Gray, 249. "The main and direct object of these acts is to confer a benefit on private stockholders who are willing to embark their skill and capital in the outlay necessary to carry for- ward enterprises which indirectly tend to the prosperity and welfare of the community. And it is because they thus lead, incidentally, to the promotion of 'one of the great industrial pursuits of the ooinmo .wealth,' that they have been hereto- fore sanctioned by this court, as well as the legislature, as being a legitimate exercise of the right of eminent domain, justifying the taking and appropriation of private property. Hazen v. Essex Co. 12 Cush. 475. It is certainly difficult to see any good reason for making a disi rimination in this re- spect between different branches of industry. If it is lawful and constitutional to advance the manufacturing or mechan- ical interest of a section of the state, by allowing individuals acting primarily, for their own profit, to take private propert}', there would seem to be little, if any, room for doubt as to the authority of the legislature, acting as the representatives of the whole people, to make a similar appropriation by their own immediate agents in order to promote the agricultural inter- ests of a large territory. Indeed, it would seem to be most reasonable and consistent with the principle upon which leg- islation of this character has been exercised and judicially sanctioned in this commonwealth, to hold that the legislature might provide that land which has been taken for a public use, and subjected to a servitude, or easement, b}' which its value has been imijaired, and it has been rendered less pro- ductive, should be relieved from the burden, if the purpose for which it was so appropriated has ceased to be of public utility, and its restoration to its original condition, discharged of the incumbrance, will tend to promote the interests of the community by contributing to the means of increasing the general wealth and prosperity. If the right of a mill owner to raise a dam, and flow the land of adjacent proprietors, COMMISSIONERS OF HIGHWAYS EMINENT DOMAIN. 4:21 has ceased to be of auy public advantage, and tends to retard prosperity and to impoverish the neiglihorhood, and the with- drawal of the water from the land, by taking down the dam and rendering the land available for agricultural purposes, would be so conducive to the interests of the community as to render it a work of public utility, there is no good reason why the legislature maj* not constitutionally exercise the power to take down the dam, on making suitable compensa- tion to the owner. It would only be to apply to the mill- owner, for the benefit of agriculture, the same rule which had been previously applied to the land-owner for the promotion i)i manufacturing and mechanical pursuits. "(/i) In New York it is held the legislature is the sole judge of what constitutes a public use, except that, to a limited extent, the constitutionality of a statute on the subject is a judicial question. And it is held that the supply of gas from a nat- ural gas well is a public use, because the lighting of streets mid public places is a public benefit, and the court insinuates that the supply of manufactured gas may come under the same principle ;(^) as, also, does the construction of railroads everywhere, (/u) § 42(5. The delegation of power, under the eminent domain law, is strictly construed; and so, where a contractor, under a -contract with the state to construct a canal duly laid out, finds it necessary to blast rocks in the bed of the canal, he is liable if any of the fragments lodge upon adjacent premises, not taken for the purposes of the improvement by the compe- tent authorities, (/<) and the plea of necessity will not avail liim. § 42T. The delegation of power does not take away the discretion of officers, so as to prevent a discontinuance of proceedings — as in laying out a park — wherei)i no actual injury has been done to land, when it is discovered that the expense will be too great. (o) (A;)Talbot'«. Hudson, 16 Gray, 42:J- Cal. 148. And of telci,n-aph lines. 428, passim. ' K- H. Co. ■«. Tel. Co. rr.i Ala. 211. (/') Bloomfield, etc., Gas-li.iiht Co. (n)St. Peter v. Denison, r,H N. V. r. Itic-liardison, 6.3 Harb. 437. 421. (//-)!{. R V. Chv of Stockton, 41 («) Washington Park,. Oe N.Y. 149. 422 COMMISSIONERS OF HIGHWAYS EMINENT DOMAIN. § 42S. It is held that the usual presumptions prevail in regard to the rightfal exercise of jurisdiction herein, so that, when land has been condemned for a railway, the determina- tion can no more be impeached, collaterally, "than the judg- ment of any other court of exclusive jurisdiction, and all the elements legally entering into the adjudication will be pre- sumed to have been assigned due consideration. "(pj § 429. As to the kinds of property subject to the exercise of the right, "every species of property which may become necessary for the public use, and which the government can- not appropriate, under any other recognized right, is subject to be seized and appropriated under the r'ght of eminent domain. Lands for the public wa3'&; a building that stands in the way of a contemplated improvement, or which, for any other reason, it is necessary to take, remove, or destroy, for the public good; streams of water, corporate franchises, and, generally, it may be said, legal and equitable rights of every description, save money, which it cannot be needful to take under this power, and rights of action, which can only be available when made to produce money, are liable to be appropriated. "(r/) Land occupied by one railroad may be thus taken for a passenger station by another railroad com- pany, even if the company whose land is taken is thereby deprived of a part of its business, (/•) and particularly land which is not in actual use an 1 indispensable for the use of the franchise previously conferred is liable; for these must stand on the same footing as the property of individuals ;(.) and, indeed, there is hardly any ground upon which an award within the submission will be set aside, except the single one of fraud. And, herein, the rule is the same as to strictly private arbitrations, to which the parties iave, in due form, submitted the determination of matters in controversy ;(c) unless, of course, the submission is re- voked, by notice, before the award is made, and not waived by appearance and participation. ((/) An award will not be set aside merely because it is erroneous, or against the weight of evidence, unless the error is so gross that it cannot be accounted for except by corruption or dishonesty in the arbitrators. (c) Thus, it is stated in Massachusetts : "When- ever a case is referrexl, vvith the consent of the parties, to arbitration, whether by rule of court, by mutual bonds in the county, or by agreement before a justice of the peace, under the statute, the decision of the arbitrator, upon the question submitted to him, is final both upon tlie law and facts, unless otherwise provided by the terms of the subuiis^sion. or of his award, and can be set aside only for exceeding the terms of the submission, for fraud, or corruption, or for sut-h uustakc as shows that he did not apply the rules \vhi:-h lie intended to apply to the decision of the case."(./) Going l)eyond the submission will, of course, vitiate the award by a want of jurisdiction, (Sherfi/ v. Graham, 72 111. I'y^j although, if the matters are severable, the award will only be void to the extent of the excess, and what is within the submission will still be valid. Bogan v. DounhdrUK :A Ala. 5i;i. Hut that which will enable the court to sever the good froui the bad (h)\i. H. »). Ilno-hcs, 2s Mid). 1>T. lO^- '^ "■ '1'Ik"":'^- -■' >«'• •'• ''-'I (r)Sinitli v. K. It. IG (Jniy, Trj:!. 4:!:!. ((i)Seeley «. Pelton. K>, 111. 102. (/)Cartcr r. Cail.T, K'H .Mas.. :;(•'.). 4*26 ARBITRATION. must appear on the face of the award. Bullock v. Bergman^ 46 Md. 270. Where there is a reference made in a case pending in a court, the consent of the parties must be entered of record, at least on the minutes of the court. Stone \. Morrill, 43 Wis. 72. And so a party complaining must be able to show from the award itself that but for the mistake a diiferent award would have been rendered ; and unless re- stricted by the submission, the arbitrators may disregard strict rules of law and evidence, and make an equitable de- cision. Halstead v. Leaman, 52 How. Er. 415. And, more- over, an award cannot be set aside, on the ground of mistake, unless it is shown that the mistake was made bj' them on their own theory'. If a party makes a mistaken concession, and on this the award is partly based, he is bound by the result. Davis v. Henry, 121 Mass. 150. And if an award is sought to be impeached on the ground that only a part of the matters submitted were passed upon, it must be shown that the matters omitted were brought to the notice of the arbitrators by the party complaining. Young v. Kinney, 4S Vt. 22. Of course, an award can be impeached for fraud on the same grounds on which a judgment may be. Conway v Duncan, 28 0. St. 105. But as to mistake, it must, as above stated, be shown that the mistake injuriously affected the award. Gorham v. Millard, 50 la. 554. However, ap- parent errors, either of law or fact, may be ground for setting aside an award. State v. Ward, 9 Heisk. 100; King v. Manuf'g Co. 79 N. C. 360. A mere clerical error may be corrected. Clement v. Foster, 69 Me. 319; Davis v. Cilley, 44 N. H. 448. Every reasonable intendment will be made in favor of an award. Darst v. Collier, ^fo 111. 96. § 431. The submission, then, being the source of authority to the arbitrators, our inquiries will be mainly confined to this, since, unless it is suliicient in itself, there is no proper court appointed or constituted, and all proceedings must be nugatory, or, at least, dependent upon the discretion of the parties, and their satisfaction with the award. And our first topic will be the parties. These are, in great degree, determined by the rules which apply to parties exe- AEBITRATION. 427 cuting contracts, since a submission is a contract, notwith- standing it is a jurisdictional authority to act. It is essential that the parties are such as have power to obey any aw^ard that may be rendered within the submission. For instance, where a religious corporation has no power to sell real estate, except by authority of court, it cannot refer the question of selling it to any other tribunal; and if an arbiter is chosen who decides that the property shall be sold, the award is necessarily a nullity, having, in reality, nothing to stand upon.(^^) For judicial power cannot be delegated; and, therefore, as the matter of sale, in such cases, rests in the discretion of the court itself, that discretion must be invoked from the court, and none can be substituted in its exercise. x\nd it is a settled rule that public policy forbids that arbitrations should ever be allowed in such a manner as to oust the jurisdiction of the courts ; as, for example, an agreement beforehand, to submit any disputes which might arise to arbitration, will not be enforced. Pearl v. Harris, 121 Mass. 390. But Kansas furnislies an exception to the rule. Bcvey v. Carter, 19 Kan. 135. If a reference is actu- ally made by consent of parties, and the reference fails from any cause, the parties still retain their standing in tiie court for a trial of the controversy. Preston v. Morrow, G6 N. Y. 452. The reference is not necessarily a discontinuance of the suit, unless the parties intend that it shall be so; and if the referee fails or refuses to act, the case still stands for trial. Heariie v. Brown, 67 Me. 156. § 432. A minor cannot be bound by a submission any mere.-) than by other contracts. The disability extends even to ri.uhts of action, so that it is held that if a minor releases a chiini for damages, oven in tort, he may avoid tlie release; and this upon the ground of his prcsunn-d incapacity to asiun'tain how much damages he was entitled to. So, if lie submit his claims to abitration, he is not l^ound l)y tlic a-.ard, l;ecausc of his presumed incompetency to choose suitable arl)itrators.(//) And in a case of this kind, (not arbitrated, indeed, but set- tled by the minor himself, and wherein the court lidd the (^)Wyatt »'. Benson, 2:^ HaH). :W(i. (/<)Haker v. Lovctl, (3 Mass. SO. 428 ARDITRATION. same principle prevailed,) it was decided that the matter could be submitted to a jury, which would then be authorized to review the transaction, and the plea of accord and satisfac- tion, and allow the amount which had been paid, and, if this was found too small, to render verdict for the deficiency. (/;) § 433. But a guardian may submit to arbitration the inter- ests of his ward in such a way as to be conclusive as a bar to an action by the minor on coming of age. Thus, even in a submission for an assault and false imprisonment of the ward, it was held the guardian could bind his ward, and the court said thereon: "It is difficult to conceive how it should ever have been doubted whether guardians had this power, or whether they were not bound by their bond, or whether an award, under these circumstances, did not put an end to all controversies submitted between the infant and other party. That an infant should not bind himself in this way is right ; but, for this very reason, a power should be lodged elsewhere ; and where can it be so properly entrusted as to the very per- son who has the care of all his property? For the present plaintiff does not appear a guardian ad litem onl}', and must, therefore, be supposed competent to judge whether a suit or arbitration will be most likely to promote the interest of his ward. But this point is settled by Rohcrts v. Newhold, where it is allowed that a guardian may submit for an infant; and even if the latter gives a bond himself, it is not void, but only voidable. With this, also, agrees the civil law, by which, although an infant cannot bind himself by a submission, yet, if any one will become his surety, a remedy may be had against the latter for the infant's non-performance. "(i) In Connecticut, (in 1787,) where one minor committed a most cruel injury on another, the parents, on both sides, sub- mitted the matter to arbitration, and the award was held to be conclusive, as to the minors, as well as the parents; although the submission and the award included the parents' right to damages, as well as the injured son's right, without discriminating between them ; and this was placed upon the (A)Ibid. (/)\Veed v. Ellis, 2 Caines, (X. Y.) 255. ARBITEATION. 429 ground of the natural guardianship of the father.(./) And much more reasonably may a guardian be permitted to submit matters pertaining directly to the estate of his ward. (7, ) And it has been held, in this, that where a submission is made of matters concerning the interest of the guardian individually, and also of his ward, and the submission does not require a separation in the award of the two interests, the award can- not be objected to on the ground of uncertainty in not show- ing what is awarded to the guardian, and what to the ward, distinctively ; and if this should ever become a material ques- tion, in a future suit, parol evidence will be admissil)le to dis- tinguish the two interests. (/) A guardian ad litem, however, cannot thus submit in behalf of his wards, because he must conduct the suit under the direction of the court — this being the purport of his appointment ; and where sucli an -one enters into a submission for himself and his wards, it will be bind- ing upon himself as to his own interests, but will not be bind- ing, in any way, upon the wards. (;») Says the Tennessee court, on this matter: "It is very clear that the power and duty of such guardian are limited, and strictl}^ confined to the defence of the jjarticular suit in wliich he is appointed. He is to defend the suit, in the court from wliich he derives his authority, according to the rule and principles of law applicable to the case, as administered in that tribunal, and in conformity with the ordinary mode of trial and practice of the court in similar cases. It is not within the scope of his authority, or dut,y, to consent to change the tribunal for the trial; or that the decision shall be upon piinciples other than those applica])le to like cases in the forum in which the suit is pending. His special and restricted jjowers admit of the exercise of no such discretion." § 434. Executors a)id administrators are autliori/ed to sub- mit clanns pertaining to the estate: and, in New York, a requirement of vouchers, and an aflidavit tliercto. is held not (,;)Beebe «, Traffoni, Kirhy, 217. (/jSlront;' i>. IScnmjon, Is AIj:. (A:)IIutchins v. .Jolin.son, l'^ Conn. J) And the right to sulnnit is held to be not merely statutory, but to exist at common \'dw.(q) But, if a less sura should be awarded than the administra- tor might have recovered at law, it is held that, although the award might be binding, yet he might be held to account for the deficiency to the heirs and other persons interested in the estate ;(r) so that a submission involves considerable personal risk in some cases. In Maine a reference of "all demands," by an adminis- trator, has been held not to include title to real estate, (s) which is not, indeed, within the scope of an administrator's relation to the estate which he represents, anywhere. At common law, in all cases, an administrator was held responsible for a mistake of the arbitrators injurious to the estate ;(^) but enabling statutes usually take away this peril. Yet, in Texas, it is held, however, that an administrator should never submit claims to arbitration without providing for an appeal, and that, if he does so, the submission is void, and because the operation is against the polic}' of the law, and likely to be "irretrievably iniquitous ;" and so an award, under such defective submissions, may be set aside, on mo- tion, or, if affirmed, it will be at the hazard of the adminis- (7i)Russell V. Lane, 1 Barb. 524. (?')Bean v. Farnam, 6 Pick. 271. (t>) Ailing V. Munson, 2 Conn. 695. (.s) Kendall v. Bates, 35 Me. .35H. (y>)Cottin w Cottle, 4 Pick. 455. {/)Overly's Ex'r v. Devisees, 1 (y)Cliadboura v. Chadliouru, 9 Met. (Ky.) 120. Allen, 173. ARBITRATION. 431 trator if the claim should, in fact, be unjust or legally invalid. The court say : "The administrator would be persoiially liable, at common law, if the award were not for the full amount of the debt really due, and, on the like principle, he should be liable for an unfounded claim, if established against the es- tate by an arbitration to which he has submitted by his vol- nntary act. But this, as before said, would be, at least, very severe upon an administrator, if arbitration be a legal mode by which claims for or against an estate may be recognized and established. If, according to this view, an administrator would not under our laws be held responsible for submission to an arbitration, to the extent of the liability incurred by the like submission at common law, the danger to which mis- takes would be exposed by such submission would be most obvious and alarming. An arbitration might become an in- strument of the greatest injustice to estates, without the pos- sibility of relief from any quarter. And, such being the ■consequences naturally flowing from such submissions, it would seem that an arbitration is an improper, and must be regarded to some extent as an incompetent, tribunal for the adjustment of claims affecting estates, especially where the claims against the estate, and the stipulation, is, as it was in this case, that the award shall be final. "(/') In Louisiana it is held that the only persons who can dis- pute an award, under a submission, by an administrator, are heirs and creditors ; and these can ratify such award so as to make it conclusively binding, even in the absence of a legal right in the administrator to submit; for, "as prohibition is intended to protect the right of parties interested, submis- sions thus made are not absolutely null, but their want of authority may be cured by the acquiescence and ratification of the parties represented by them."(iO § 4-35. As to the power of an att(n-ney at law to submit tin; case of a client, it is perhaps universally recognized; at least, in a degree. But the award must not be virtually a com- promise, in the form of an award; for this cannot bind («)Yarborouchw. Lcggett,14Tex. («)Latlicr «. Kuclial, Vl La. Aiu 680 696. 432 ARBITRATION. .111 injured party. (/r) A proj^er reference may be "by oral consent, in open court, entered on the minutes. "(.r) And it is held that "an autliority to prosecute or defend a suit implies a power to refer it, by rule of court, that being a legal mode of prosecuting or defending. "(;/) But he cannot bind his client by a submission by bond merely. It must be under a rule of court, (^j And, in that case, a formal consent of the client is not requisite, for, say the Georgia courts " Why should not this be so ? An attorney may confess a judgment against his client; and this involves every thing,"(''/) and in the progress of a cause an attorney's solemn admis- sions are binding upon his client. (//) But he has no jiower to change the terms of a submission, made by the parties before he was employed as counsel. There must be a pend- ing suit before the submission, in order that the attorney may have authority to submit, and the submission must be made after he has undertaken the management of the cause, to give him control of it;(6') and then it is within the general powers of an attorney to submit. Halkcr v. Parker, 7 Cranch. 449. Tliat is, in court, but not in pais. McGiiDiis v. Curri/y 13 W. Va. 30. Nor can an attorney, witliout the client's assent, delegate an authority to submit to arbitration. Upright V. Evans, 53 Ala. 108. In Pennsylvania, however, it has been held that a party has a right beforehand, if dissatisfied with an agreement of his attorney to refer, to apply to the court where the agree- ment is entered to have it set aside ;(f/) that is, a party lias, nevertheless, the right of revoking a submission entered into by his attorney. But, as to the general right of an attornev to submit, it is declared that there is no force in an objection that an attorney cannot be allowed to deprive his client of the right of trial by jury, because no one disputes his authority to {w)nolk(,T »;. Parker, 7 Cranch, ('/) Wade ti. Powell, 31 Ga. 22. 453. (A)Beverly v. Stephens, 17 Ala. (.r) Bates v. Visher, 2 Cal. ;5;J7. 70."). (.V)BuckUind v. Conway, 10 Mass. (r).Tenkins v. Gillespie. 10 S. & 31. 39 (J. ' 34. (s)Smith V. Bossard, 2 McCord, (rf)Millar v. Criswell, 3 Burr. 449. (Ch.) 408. ARBITRATION. 433 make an issue of law by putting in a general demurrer, aud thus give the decision to the court without the intervention of a jury.(t') And it has been held in that state that where a rule of court was entered on the part of the plaintiffs to sub- mit a cause to arbitration, and arbitrators were chosen ac- cordingly, held a meeting and adjourned, and during the adjournment the attorneys entered into a written agreement, entitled of the cause pending, which provided for the submis- sion of all matters of variance between the parties, of every nature and kind, without regard to the form of action or the pleadings, to the arbitrators then chosen or others appointed in their stead — the award to be final and conclusive, and the parties waiving the right of appeal and of inquisition upon real estate — the submission was within the authority of the attorneys, when not revoked by the party in due form;(/) this being the party's right, in all cases, if exercised in time,(/y) This submission must be made a rule of court, but this may be done by reciting the act under which it is made. If there is no agreement to make it a rule of court, the court cannot enter judgment on the award. (/i) • § 436. An agent may bind his principal in all submissions not requisite to be sealed. And the rule that an agent cannot bind a principal by a seal does not apply where the agent signed a submission under seal, when a seal was not required ; for, in such a case, the seal is merely nugatory. (i) And, even if an agent transcends his authority in making a submission, the award may be ratified by a subsequent adoption of it, so that it will be as conclusive upon the principal as if he had him- self executed the submission. (,/) And, if tlie principal shouhl appear at the hearing before the arbitrators, it would be also a waiver of all objection from want of authority in the sub- mission, (/i) If, however, an agent enters into a submission in his own (e)Wilsont). Young, 9 Pa. St. 102. (/()Stokeley «. Kobinson, 34 Pa. (/)Binghain's Trustees v. Guth- St. SIC. rie, 19 Pa. St. 420. (i)White «. Fo.x, 29 Conn. :>ir-,. (6r)Colenian v. arb. GGl. 440 ARBITRATION. pi'ive the arbitrator of all jurisdiction, and an a^vard cannot be enforced, even against the one acknowledging the submis- sion ; upon the ground that a strict conformity to the statute is necessary to the acquiring of any jurisdiction, (a) and the submission must show who are the members of the firm with exactness, (?>) Where one who was a Frenchman, and understood the English language quite imperfectly, was present at, and to an extent participated in, a conversation wherein his partner finally agreed to arbitrate the matter in dispute, he was held not bound by his j)reseuce, nor by his conversing about the affair, unless it further appeared that he intentionally as- sented to a reference by his partner, (c) § 438. The rule is the same in regard to joint owners who are not partners — one cannot bind another without special authority, (V/) and herein tbe reason is ver}- much stronger than in regard to partners, as I judge. Where those having a joint interest agree to submit jointly, it has been held that the submission also includes a several award as to each, unless, of course, the terms of the submis- sioQ expressly confine the award to joint interests. The rule is thus stated : "It is said, in Baspole^s Case, 8 Coke, 93, that if tw^o on the one part and one on the other part submit themselves, the arbitrator may make an arbitrament between one of the two of the one part and the other of the other part, and it will be good. And so the rule is laid down in CJiap- )ii((ii V. Ihtlfon, 1 Plowd. 289, citing 2 R. 3. The case in the Year Book, 2 E. 318, referred to by Plowden, is thus stated by Kyd on Awards, 157 : Where the submission was between three on the one side, and one on the other, of ail actions and demands between them, it was held that the arbitrators had an authority to make an award of all joint matters between the three and the one, and also of all matters severalltf* be- ((^OAliliott '/!. Dexter, 6 Cusb. lOS. where there are two joint suits, and (ij Wesson •«. Newton, lOCush. 115. also individual suits, against a de- ((•)>Iartia v. Thraslier. 40 Vt. 464. fendant, and the cases are referred, lf?)Eastman ». Burleigh, 2 N. H. the whole may be included in a con- 487. soliduted award. Vannah «. Carney, *And so it has been held that 69 Me. 221. ABBITRATION. 441 tween the one aucl atnj one of the three; and Brook, in abl-idging the case, says this is good hiw ; but he denies that what follows is good . law, viz., that the arbitrator has an authority to decide on any matter between any two of the other three. See, also, Yin. Ab., Arbitrament D, pi. 5, and note. In Lihtral v. Field, 1 Keb. 885, p. 1, 47, it was held that an award between one of one side and one of another is sufficient on a submission by several. In Athelstone v. Moon (& Willis, Comyn, 547, a motion was made for an attachment for not jjerforming an award. The award was that Willis should pay a sum of money due by- him to the plaintiff. The submission was of all matters between the parties, without saying between them or either of them; and objection was taken that this must be understood of joint demands of the plaintiff against both defendants, and so the award was not. good. But the court disallowed the objection, and said a submission of several persons of all matters of difference be- tween them imports a submission of all matters that either had against the other, jointly or severally. I do not find that this doctrine has been denied in any of the more modern cases. "(e) Some of those having a joint interest may, on the same principle, sever in the submission, and make an agreement binding them alone; and others may come in afterwards, and, by submitting, adopt the agreeuient.f/) And so adult heirs may submit, although there are minor heirs interested in the subject, and the award will bind the adults; and that, too, when the subject-matter is an equitable title to lands. (<'"i ^^''"-" ••'^'.V ^^■•''"' *^" ^'"^^ ••'*' And where arbitrators were ap- land. I5ow v. AVilson, 48 Md. 365. pointed to ascertain the deficieu<-y (./)Ilii«l. 57-60. 446 ARBITRATION. Submissions may be made conditional upon subsequent facts connected with the arbitration. (A;) In general, a submission of a cause pending in court, with- out a rule of court, and a stipulation that judgment may be entered on the award, works a discontinuance. (/) But where a submission was of matters, a part of which was in suit, and the award was that if a certain sum was not paid to the plaintiff the suit should go on. it was held that the submis- sion and award were no discontinuance of the suit.(m) A submission may always be revoked before an award is rendered, on notice given, unless there is an express stipula- tion to the contrary. But, where a party has taken and en- joyed the benefits of an award, he cannot then object to it, even on the ground that the submission was made by his his agent, without authority. Perrti v. MiUigan, 58 Ga. 479, A reference under a rule of court cannot be revoked except by obtaining a discharge of the rule. Knapp v. Fisher, 49 Vt. 94. Nor can a party, in some states, revoke a submis- sion after hearing has commenced; and, even before, if the submission is in writing the revocation must likewise be in writing. Shroyer v. Bash, 57 Ind. 349. An arbitrator may be disqualified — as a judge may — but only by such interest, relationship, or prejudice as was not known to the objecting part}' at the time of entering into the submission. (/i) (/fc)Merritt v. Thompson, 27 N. Y. arbitrators, and the other party 225. knows it, the latter cannot after- (^)Larl5in «. llobbins, 2 AVend. 505; wards object to the award on that Heslep V. San Francisco, 4 Cal. 1. account. Noyes v. Gould, 57 N. H. (??i)Elliott V Quimby, 13 N. H. 20. And a city, accepting as an ISl. arbitrator one who, as alderman, (n)See Morse on Arb. and author- had been active in the council as to ities cited, c. 4, p. 99, etc. the matter, cannot object to the . It is no disqualification that an award on the ground of the dis- arbitrator was formerly counsel for qualification of such arbitrator, one of the parties in another action, Kane v. Fond du Lac, 40 Wis. 495. unless there has been an intentional An award may be invalidated by concealment of that fact from the the failure of one of the arbitrators opposite party. Goodrich v. Hul- to take the prescribed oath. Hep- bert, 123 Mass. 190. And if one of burn «. Jones, 4 Col. 98. the parties furnishes liquor to the NATURALIZATION. 447 CHAPTER XIII. NATURALIZATION. i 444. Duty of congress to provide for naturalization. 445. Naturalization a judicial act. 446. What courts may act. 447. Conflict of authority as to state jurisdiction. 448. Act of congress not authoritative so as to require state courts to act. •449. Record of naturalization conclusive. 450. Naturalization not retroactive. 451. Singular law and singular execution of it. 452. Naturalization as to infants. § 444. The constitution of the United States has devolved on congress the duty of providing for the naturalization of aliens, by which are conferred upon them the privileges of citizenship in all particulars, except eligibility to the presi- dency. Accordingly, laws have been enacted for the purpose, and adjudications had under these laws. It is only the lat- ter that I j)urpose to notice, and these only so far as they relate to jurisdictional matters, which alone properly fall within the compass of the present work, § 445. That the naturalization of aliens is a judicial act is universally conceded, so far as I know, (a) and consequently it cannot be delegated to a clerk, but must be exercised by the court itself, (/^) except as to the preliminary application and oath of an alien, which are regarded merely ministerial. (c) § 446. As to the kind of court which is competent to take jurisdiction, it has been held that under the act of congress of 1802 a court of record, not having a clerk or prothonotary distinct from the judge, is not competent even to receive an (a)Spratt v. Spratt, 14 Pet. (U. S.) (J)(;iuri<'s Case, 44 Harl). 444. 40ti; Morgan V. Dudley, 18 B. Mon. (^:)I5uitcr\v()rlh's Case, W. & M. 714, (U. S.) 323. 448 NATURALIZATION. tilien's preliminary declaratiou of intention, (c?) and the reason is stated to be that "it is generally true that a court of record, which is without a clerk or prothonotary, is not only a subor^ dinate tribunal, but one to which a very narrow and compar- atively unimportant jurisdiction is entrusted." In Illinois, prior to the constitution of 1S70, it was held that the county courts had no jurisdiction in naturalization, and this reason for it was given : "It was said in Mills v. McDade, 44 IlL 194, ' that a fair and reasonable construction of the act of con- gress requires us to hold that only a court of record for gen- eral, and not for special, purposes was intended to be em- braced. That act has not declared that a court of record, for some purposes, shall be vested with such jurisdiction." So, for the same reason, we must hold that where, although a court of record, if it only has common-law jurisdiction in three common-law actions, and two of them limited in amount, it is not such a court as was contemplated by the act of congress. Where it declared that it must have common- law jurisdiction, it cannot be that it was designed to confer the power on a court, having a seal and clerk, which could only exercise the smallest fragment of common-law jurisdic- tion. The court intended to be embraced was one that exer- cised a general jurisdiction, although it might be a common- law jurisdiction, limited as to the sum or amount in contro- versy; and it may be where some kinds of action are ex- cluded, "(e) § 447. There is an evident conflict of authorities upon the question as to the source of the jurisdiction exercised by the state courts in naturalization — some holding that it is conferred by act of congress, others that it is not, because congress cannot give jurisdiction to state courts. The mid- dle ground on which the extremes meet and are reconciled is this : That prior to the adoption of the national constitution the states had the power of naturalization ; that this power was superseded and held in abeyance by the constitution and ((7)Gregg's Case, 2 Curtiss, 9S. 251 ; State . Co. 38lnd. 72. (^jCoiniiiunw. v. Siuilli, 4:. Pa. (/i)Commoiiw. v. Atlioaiin, 3 Mass. St. UO 286. (ry).Morris v. Underwood, 19 Ga. 559 v.l— 30 4^)0 QUO WARRANTO. not the sole object of the proceeding to oust an incumbent, but to impose a fine, or costs, or damages to the relator, (r) § 466. Whether a town has been legally erected may be determined in New York in an action of quo warranto against one claiming to act as supervisor, (s) and the question as to whether the town has a legal existence is, indeed, the very point of the controversy. But this appears to be exceptional, according to the principle laid down in the preceding section. The legality of the existence of a school district may, in Iowa, be inquired into by a direct proceeding of quo warranto, (t) which does not seem exceptional. * The right to a military office may be tried by this proceed- ing, and it is held herein to rest upon the constitutional pro- vision that "the military shall, in all cases and at all times, be in strict subordination to the civil government," it not being a department of the government, but only an instru- ment to execute, in some particulars, the will of the govern- ment, and no military officer having any authority except by the civil law or military customs thereby recognized. (tt) And a county school superintendent can, in Pennsylvania, only be removed by quo warranto, under a statute providing expressly that he may be removed for neglect of duty, incom- petency, or bnnioraJity, by the general superintendent of schools. He must be summoned to answer any charge brought against him under the statute, although, if he was appointed so as to be removable at pleasure, it would be different, since, in such :a case, the will of the appointing or removing power is wholly without control. No cause needs to be assigned for its exer- cise, and no reason can be asked. (?-) The principle is that where appointments are made under powers, as of a statute, the appointment is not subject to revocation unless the act creating the power expressl}' declares it to be so. Otherwise, when an appointment is made, the incumbent holds in con- templation of law directly -from the authority which created .(?■) People V. Hartwell, 12 Mich. (O^tate v. School District, 2i> la. JjOS. 2(35. (.sjPeople V. Carpenter, 24 N. Y. (i/)Commonw. v. Small, 20 Pa. 58. St. 33. ,(«)Field V. Commonw. 32 Pa. St. 481. QUO warranto: 40)7 the power, so that he is the creature of thehiw, and stands as if his name had been mentioned in the enabling statute. (»•) It seem to be on this principle that, in California, qno u-ar- rtinto lies against a pilot appointed by the board of pilot commissioners, upon whom the duty of appointing devolves under the statute, which statute defines and limits the pow- ers. (./•) And, also, on this principle it is that the secretary or treasurer of a railroad company cannot be made to answer to a writ of qtio ivarranto, as we noticed in the preceding section, his office being merely at the pleasure of the directors, and not under statute, so that it is not a public office. It is, ac- i-ordingly, different with the officers of a railroad or other cor- poration, who are elected as prescribed in the charter, their offices being therefore statutory and public. (//) It is also on the principle correlative to this, namely, that a corporation and its officers are only answerable to the sov- ereign authority by which it is created, that the officers of a bank organized under the national currency act caiinot be made to answer a writ of quo warranto issued by state courts while they are so answerable to the United States. (r) It is also on this principle that the trustees of an incorpo- rated church, having a special legislative charter, are held answerable to the civil courts on quo warranto, as to their holding the office, although the legality of the holding also depends upon regulations made by the church authorities, which regulations must of neeessit\' form a part of the inves- tigation in the quo warranto proceedings. (a) A proceeding to escheat property held by a corporation is by quo warranto appropriately, so provided by statute, some- times. (6) In Ohio, where the franchise of a private corporation is to be drawn into question, the proceeding should hv under the ((rUIeuncns Case, 13 Pel. (U. S.) (^/)State v. Ferris, 45 Mo. ISi). 23,; (/>) West's Appeal, (54 Pa. St. 104. (j) People?). AVoo(H)ury, 14 Cal. 43. But quo warranto U not a proi)er (//iPcople ». f5iis(iiu'lianna K. It. remedy to recover real estate, e.\- fj-. Barb. '.'j-A; People v). Albany, etc., cept on escheat, or forfeiture to tiu! ]{. R. (same eas<-) 38 How. Pr. 237. state. Slate ex rel. v. Sl.ieifi.s f.i; (3)State V. Curtis, 35 Conn. 378. Ind. 521. 403 QUO WARRANTO. statute agaiust the individuals usurping the franchise, (c) This is phxced on the authority of Rex v. Citu of London, by the court quoting with aijproval a statement of the general rule, thus: "He says the rule is this: when it clearly appears to the court that a liberty is usurped by wrong, and ui3on no title, judgment of ouster only shall be entered; but when it appears that a liberty has been granted, but has been mis- used, judgment of seizure into the king's hands shall be given. The reason is given: that which came from the king is re- turned there by seizure ; but that which never came from him, but was usur]3ed, shall be declared null and void. Judgment of ouster is rendered against individuals for unlawfully as- suming to be a corporation. It is rendered against corpora- tions for exercising a franchise not authorized by their charter. In such case the corporation is ousted of such fran- chise, but not of being a corporation. Judgment of seiz- ure is given against a corporation for a forfeiture of its cor- porate privileges." Also, People \. Richardson. 4 Cowen, DT, is cited : "If the information be for using a franchise by a corporation, it should be against the corporation. If for usurping to be a corporation, it should be against the jjartic- ular persons." § 467. It has been sometimes contended that writs of quo u-arranto should l)e confined to the subjects to which the ancient writs were applied, which of cmirse would render im- possible the forfeiture of a railroad charter and the like, these being modern in their origin. But this ground has justly been held untenable. (VZ) § 468. The fact that a city council has admitted an inel- igible member to a seat therein, and refused to expel him, does not prevent courts from investigating the matter on quo warranto and ousting tlie member. (e) § 469. As to election matters, it has been held that where a general municipal election was held on a wrong da}- by (c)State V. Gas & Coke Co. 18 O. ((f)State v. K. R. Co. 34 Wis. -JO.-). St. 262. And so of a municipal (fi)Commonw. r. Allen, 70 Pa. St. corporation in New York. People 472. V. Clark, 70 N. Y. 518. QUO WARRANTO. 4G9 mistake, not discovered till afterwards by officers, candidates, or voters, and where there was no pretence of fraud or cor- ruption, the court has a discretion to refuse to allow an in- formation to be filed against an alderman elected at that election. (/) The determination of canvassers has no such t-onelusive validity as to prevent a court from inquiring into the result of an election on quo K-arrantu.(g) In Missouri a contested election is inquired of on a quo ivarranto.{]i) But, where the attorney general files the infor- mation, the qualifications of electors cannot be inquired into, nor the qualifications of a party, other than the incumbent, to hold the office. (i) But it is different in "Wisconsin, it seems, for there it is held the question is whether defendant received a majority of all the votes which the canvassers had a right to count, which implies an examination into the qual- ification of the electors. (_/) And, accordingly, where it ap- pears that there was no registry of the voters, and none of the voters gave the affidavit required in the absence of a reg- istry of their names, the whole vote of the election precinct must be rejected. (A-) § 470. In Kansas, if a new county has been organized through falsehood and fraud, by presenting to the governor a false memorial and false census returns, the supreme court (/)Statc V. Tolan, 38 N. J. F/iw. liowcvcr. can he inquired into liy lD(j. xVnd so, where one was elected quu imrrauto proceedings against on a prudential committee of a those claiming office under it, (Stc- school district, hut, on a mistake, phens /:. People, 89 111. 33^,) pro- the election proceeded, and finally vided they have taken the oath of resulted in the choice of another, oflice— this lieing of itself .i snlli- it was held that the general accpii- cient nxer to authorize the writ, esccnce of the voters and the can- People ex rd. v. Callaghan, s:j 111. didates waived ohjection, and es- 12il. And the court may go heliind pecially so where the candidate first the returns: in New York, at lea>t. elected" and finally defeated had People y;. McCatisland, .''.4 i low. Pr. .subsequently disqualified himself l;''l- by taking an incompatible oflice. (ry)Slate ?:. Clark, f Dulch. .'i.'-.r.. Cate «. Farber, 56 K. 11. 224; and (//)Bo\vcn v. lli.xon, 4r) ,\Io. 341. .see, to similar eflfect. People v. («)State v.. Vail, ".3 Mo. 103. Waite, 70 111. 2.5, and People v. (.y)State «. Tierney, 23 Wis. 4;!:t. JVIoore, 73 III. 132. A void election, (/■)ll)id, fi31. 470 QUO WARRANTO. may proceed by quo icarrcuito against the persons assuming to act as officers of such county, and inquire into the false- hoods and frauds whereby the organization was effected, and dechire it illegal and void, even if the legislature has appar- ently recognized it as an existing corporation. (/) § 471. I^pon the ground that the public interests require the functions of public offices to be exercised during jjending litigation, as well as at other times, a court may properly dissolve a temporary injunction restraining officers de Jacta and claiming to be officers de jure, from exercising such func- tions during the 2:)endency of proceedings in quo icorranto.im) (i)State V. Ford Co. 12 Kan. 444. irarnnilo. Alderman v. Directors^ And so, the legality of a school dis- 91 111. 179. trict may be inquired into by quo (m)State v. Dukee, 12 Kan. 314. MANDAMUS. 471 CHAPTER XV. MANDAMUS. $ 472. Nature of writ. 473. Discretionary. 474. When other cases pending. 475. Common-law rules. 476. Not allowed when there are other adequate remedies. 477. Writ to enforce official duty. 478. Demand and refusal. 479. Matters of discretion — illustrations. 480. The writ not a subslitute for appeal. 481. Only enforces possible acts. 482. What courts may issue. 483. AVrit serving as a writ of inquiry. 484. Mandamus from an appellate court. 485. Not to enforce matters arising from contract. 486. Executive officers— extradition. 487. State treasurer. 488. Secretary of state 489. Writ issued to inferior courts. 490. Not to condemn lauds. 491. College-professorship case, in Michigan. 492. Courtesy among judges as to issuing writ. 493. Enforcing compensation to school teacher. 494. Public improvements— various matters as to payments. 495. Ferry tolls. 496. Private corporations. 497. Church and society matters and membership. 498. Bids enforced by mandamus. 499. Elections. 500. Ousting jurisdiction by expiration of office. 501. Mandam,ns not to try title to office. 502. But demand for room, keys, etc., may be enforced. 503. Location of highways. .504. Compelling successor to .seal a county warrant. 505. Compelling to correct a deed or sign a contract. 506. Compelling admission of a colored child to the public schools- enforcing right of a school comniitiee. 507. Surveys. 508. Miscellaneous particulars. 509. Keturn to the writ. 510. Relators MANDAMUS. § 472. The v»rit of mandamus has been defined to be "a high prerogative writ, to be awarded in the discretion of the court, and which ought not to issue in any case, unless the party applying for it shall show a clear legal right to have the thing sought by it done, and in the manner and by the per- son or body sought to be coerced, and must be effectual as a remedy if enforced, and it must be in the power of the party, and his dut}- also, to do the acts sought to be done. It is well settled that in a doubtful case this writ should not be awarded. It is never awarded unless the right of the relator is clear and undeniable, and the party sought to be coerced is bound to act. "(a) The object of the present chapter is to (^Oi'eoplc V. Hatch, 38 111. 140: Maliley v. Judge, 41 Mich. 32. That is to say, that on tlu; one part there must be a clear riiiht, and on the other a clear legal dut^-. As to the right of the applicant, theret'ore, it must not he doubtful. Thus, if the writ is sought to enforce an ap- portionment and division of a school fund, the relator must show a vested right in the fund (People ex rel. v. Trustees, 8(j 111. 613 ;) and he must not only show that he has a right to have the thing lie seeks to have done, but also that he has a right to have it done in the manner asked, and by the person or body sought to be coerced. People ere re?. Klokke, 92 111. 134. The writ will not issue if the right is dubious, (State v. Bab- cock, f)l Vt. 570,) and so the appli- cation must state specifically what Is required. State ex rel. v. R. H. .59 Ala. 321. Thus, to Iiave a right to compel the allowance of an ap- peal, he must liave been an actual or at least virtual party to the suit. Cutting's Case, 94 U. S. 14. In such a matter, however, an iiiter- vciiiiifj party may possess the same right as an original party. Jordan's Case, 94 U. S. 248. Also the right of a complainant must be specific, complete, and legal ; and independ- ent, usually, of what lie merely holds in common with the public at large. Commonweahh ex rel. v. Mitchell, 82 Pa St. 343. He must have a di- rect personal interest, in some man- ner, to give him a status in court, (School Trustees v. People ex rel. 71 111. 559 ;) and so, if one brings inaii- ihuiius to c mipel the opening of a highway, he must show a personal interest other than an excepted di- version of travel from his land to the proposed route, because his in- terest does not depend on the open- ing of the road merelv, but on the use of it by the public. Moon v. Cort, 43 la. 503. If jxirt of a claim is illegal, it will vitiate the whole, in an application for mandamus. Cook V. Treasurer, 50 Vt. 231. Pailies only incidentally or col- laterally interested in a matter can- not properly be parties to a man- (lamiis proceeding, either as peti- tioners or defendants. State ex rel. V. Smith, 7 S. C. 275. However, there is not entire uni- formity among the authorities on this matter. Some hold that when the question is one of public rigbt, and the Avrit is asked for to enforce the performance of a public duty, MANDAMUS. 473 unfold and sliov^ the application of the jurisdictional features of this comprehensive definition. § 473. It is thus defined to be a prerogative writ, and, therefore, discretionary as to its being awarded on applica- tion — not absolutely so, as formerly with the English sover- eign, but relatively so. The discretion to be exercised is not an arbitrary, but a sound judicial, discretion, so that in a proper ease it should not be denied. But a court ma}- prop- erly refuse to issue a writ in all cases, where substantial interests are not involved, even though it would be just to grant it. And so, where suit was brought by petition for a vuDidainus to comj^el the auditor of public accounts to draw the relator does not need to show any legal or special interest in the result, since he is interested as a ) And, in its discretion, a court will refuse to grant a motion in mandamus which would have the effect of "placing a judge between two fires," because this "would be very indiscreet. "(c) And the discretion may be exercised even if it appears that the applicant is otherwise remedi- less, as the court will grant or withhold the writ, as may seem to be best in the promotion of the ends of substantial justice. (J) Nevertheless, it is held contrariwise by some of the state courts, and by the supreme court of the United States, that the writ of mandamus is a writ of right, and not a prerog- ative writ, and is nothing more than the ordinary process sioners has acted, and which tliey have refused, (State ex rel. v. Board of Com'rs, 2(j Ohio St. 305;) the (daimant must appeal, or bring suit and obtain judgment, before a man- dmnvs will lie to enforce his de- mand. Portwood V. >l(jntgomery Co. 52 Miss. 523. And if a judg- ment is rendered against one by a county court, on application for a warrant on the treasury payable out of a particular fund, to satisfy a judgment he had previously ob- tained, a mandamus will not lie, be- cause the act of refusal is a judicial act, and an appeal lies from the de- cision. State ex rel. v. County Court, 68 Mo. 29. And so a state officer can only be compo led liy uiundanius to the performance of a purely ministerial act. State ex rel. V. Johnson, 28 La. An. 932. And so of other officers. State ex rel. v. Police Jury, 29 La. An. 140. And so a city cannot l)e compelled by iiiandamiu to pay an unliciuidated demand, since this requires a judi- cial act to ascertain what is due, and the payment is not, therefore, a mere ministerial act. People «. De- troit, 34 Mic-h. 20L Creditors, how- ever, may thus enforce the payment of fixed or positive claims on which judgment is entered. State ex rel. V. Pillsbury, Mayor, 30 La. An. 705. If an official duty is to be per- formed, on the happening of a par- ticular event, the officer cannot ca- priciously deny the liappening of the event as an excuse for non-per- formance. If the event can be proved to have really happened, mandamus will lie on his refusal to perform. Stockton K. Co. v. Stock- ton, 51 Cal. 329. 'The matters in this note are treated below in the text more at large. These are the general prin- ciples. (^j)Peoplci'. Hatch, 33 111. 134. (r')Fieming"s Case, 4 Hill, 584. ((Z)Mc('lelland v. Dowling, 37 How. Pr. 394. In Wisconsin it is held that courts have di.screlion iinly in matters of private right, and not where the writ is invoked in behalf of the stale ns a pure pre- rogative writ in matters of public right. State ex rel. v. Doyle, 40 Wis. 221. 476 MANDAMUS. of a court of justice, to which every one is entitled when it is the appropriate remedy. (c) § -1:74. On the ground of discretion it has been hekl that, even wliere parties have commenced other proceedings, a writ may be awarded if the court judges it i^roper, although onh* in extraordinary cases will the discretion be thus exercised, it being the ordinary rule that nutinl'tmns will be declined wliere there are other remedies. (/) § 475. When the power to issue has been granted in gen- eral terms to a court, its discretion therein is to be guided by common-law rules ;(//) and in general the writ should be granted only to prevent a failure of justice, and for some im- portant public purpose, although the value of the matter, or the degree of pul)lic importance attached to it, ought not to be too nicsly or scrupulously estimated; and heuje it has been held that to preserve the rights and secure the order, peace, and quietness of a church society may be regarded properly as of great public interest and importance. (/<) § 476. As intimated above, inasmuch as the chief ol)ject and utility of a writ of mandamnn is to prevent a failure of justice, it will not usually be allowed when there is an ade- quate renied}' either at law or in equity, although it ought to be granted where the law has established no specific renied}', and when, in justice and good government, there ought to be one;(i) as, for example, where a law proves defective and insufhcient to compel a public officer to perform a clearly- defined public duty.(,/) So, in general, a ijuiiuhdiiiis will be refused where the state has suffered loss from the df Fault of a public treasurer, unless the bond of the defaulting officer has been exhausted, or else it appears that a suit on the bond (f')C"oinm()n\v. of Ky. '/;. DcnnisDii, (v)Fitcli /'. ^rcDiannid. 2(1 Arl:. Gov., 2-1: Hcnv, (U. S.) iiS; KcmliU 4s(i. V. U. tS. 12 Pel. (U'l: Kfiulall v. (//)( 'IhutU in CUielsea v. Slack, (J Stoke-;, 3 How, li>(i. In Illinois it Cii-li. :;39. is now made u common remedy l\v (/)District v. Perkin.';, 4!i X. fl. statute, as constrvied b\- the supreme 540. court. People t'.v rel. v. Weber, Sti (_/) People v. Martin. (32 Barb. 111. 2-3. .")72. (/) People V. Solomon, 51 ill. 3^. MANDAMUS 477 would be unavailing ;(/,:) or, where there has been a refusal to transfer shares in a corporation, if the petitioner can l)e indemnified, by judgment for damages, in an action at law; (7) the general rule being that, when a statute gives power to a particular person, or imposes an obligation to do some partic- ular act, and provides no adequate specific remedy for a non- performance, a iiiitnddimis is properly allowable.! /») It makes no difference whether the remedy be at law or in equity; so that a iiuiiKlaniiis is not to be granted where there is a full and specific equity relief available;!;/) as where a law authorizing a special election fails to provide for any mode of contesting the election and recanvassing the votes cast,; but equity will, on the ground that this is a matter of pu^)lic concern, entertain jurisdiction to relieve against fraud therein, and carr}^ out the intention of the law in submitting the special question, such as the removal of a county seat to a vote of the people ; in that case, an application for a man- ihinui.^ will be refused. (o) But the remedy provided must l)e sure and adequate, and, where there is material doul^t concerning it, this doul)t will justify the jurisdiction to be exercised in issuing the writ.(j'j) And so, if trover or replevin will lie to compel delivery of records to the proper officer, yet if manduinus is a more ap- propriate or effectual remedy, it will l)e awarded. (7) And so, if ministerial officers are liable to an action on the case for a neglect of duty, yet they may be compelled by rndtulaiiins to exercise their functions according tolaw.('r) (/t)^^t;ite •/). Hoaid. etc., '1^> Jnil. 011 the n^latioii of one who li:is a 210. cli'ar riglit to havt; it pci't'onncd, {/j^lurray v. Stevens, 1 in \[ass. and where tliero isno otlieradeqiir.le' i),-,. lci>'al I'enicdy. State «. Mew Haven, !///)\Vinl) People ?!. Wiant.4'^ III. 'IM. providea euniulalivc,l(ssexpensive, (/))People V. J lead, 25 111. :52!i. and more speedy I'eniedy, .so that it. (7)Sudhury Parisli ?;. Stearns. 21 is niaiiditiry even wlieri' th) In fact, discretion ceases- to be discretion when it is compelled by an irresistible author- ity to a definite and prescribed conclusion. The principle applies to executive officers, even to land- office registers and receivers. (a) Also to jridicial discretion, as in issuing an inj unction. (^) And to the board of selectmen of a city, who have the right to judge conclusively' of their own election, and of that of their officers. (c) Where a court refuses to dismiss a bill, on the motion of a complainant^ jiuindamiis cannot be resorted to to compel the dismissal. This must be left to the ordinary course of proceedings on appeal. (fZ) Nor to vacate an order fur a new trial where this, has anything in it whereon the judge must exercise his dis- cretion, (r) Even where school directors exercise a discretion unwisel}^ there is no remedy by uianda)}rus.(f) ^ 480. Nor in any case can a writ supjjly the place of an appeal or writ of error, and not even in regard to a matter which cannot Ije appealed because of the amount involved be- (*)State V. Davis, 17 Minn. 4.S2. duty upon tlie oflicer. Keuaercr v. (.y)C()nim"rs v. King, 13 Flor. 460. State, 7 Neb. 130. Thus there must l)e a i)revious (slSej^mour v. Elj-, 37 Conn. 10(>. th-niand and refusal before tlie (<7)LitehtieId v. Kesrister, etc., & proper officer will be compelled Ijy Wall. 577. iiuiiidiniuu lo e.xecute a ta.K deed. ('()Mc31illan v. Smith, 2G Ark. Bry.son v. Spalding, 20 Kan. 427. (>].">. And so in regard to other duties (f)State v. Board, ete., 2") La. Aiu relating to the interest of individu- 31(i. als, for in all ca.ses such facts must ((Z).Jobn8fm's Case, 2') Ark. (jl4. be shown as impo.se the particular (fjPeople v. .ludge, 17 Mich. ti7. (/)Clark V. Directors, 24 la. 266. MANDAMUS. 481 incj below the jurisdiction of the appellate court. On this the supreme court of the United States say: "Applications for a mandamus to a subordinate court are warranted by the principles and usages of law, in cases where the subordinate court, having jurisdiction of a case, refuses to hear and de- cide the controversy, or where such a court, having heard the cause, refuses to render a judgment or enter a decree in the ease; but the principles and usages of law do not warrant the use of the writ to re-examine a judgment or decree of a subordinate court, in any case; nor will the writ be issued to direct what judgment or decree such a court shall render in any pending case; nor will the writ be issued in any case if the part}^ aggrieved may have a remedy by writ of error or appeal, as the only office of the writ, when issued to a subordinate court, is to direct the performance of a ministerial act, or to act in a case where the court has jurisdiction and refuses to act; but the supervisory court will never prescribe what the decision of the subordinate court shall be, nor interfere in any way to control the judgment or discretion of the subordinate court in disposing of the controversy. * * " * * Confess- edly, the petitioners are without remedy, by appeal or writ of error, as the sum or value in controversy is less tlian the amount required to give that right, and it is insisted that they ought, on that account, to have the remedy sought by their petition. Mandatnus will not lie, it is true, where the party may have an appeal or writ of error, but it is ecpially true that it will not lie in many other cases whore the party is without remedy by appeal or writ of error. Such remedies are not given, save in patent and revenue cases, except when the sum or value exceeds two thousand dollars; but the writ of mandamus will not lie, in any case, to a subordinate court, unless it ajDpears that the court of whidi conqjlaint is made refused to act in respect to a matter within the jurisdiction of the court, and where it is the duty of the court to act in the premises, "(ry) So, however erroneous the proceedings of a court may he, they cannot be reviewed in proceedings for a (i^jNewman's Case, 14 Wall. 1G5, 168. v.l— 31 482 MANDAMUS. niandamus.(h) And where one is dispossessed of an office by a superior force, exercised under process irregularly issued by a court, mandamus will not be available to restore him to the possession.(i) § 481, An act to be commanded by the writ must be within the power of the defendant to perform, and therefore it must not embrace any element of illegality, (J) for it must not only be possible in a natural sense, but legally possible. (A:) And so, where an official act is sought to be required of one who is no longer an officer, a mandamus must be refused, since "its issuance would be vain and fruitless, and could have no ben- eficial effect ;"(/) and it is not the business of courts to send out a nugatory writ — a hrutum fidmen. They always aim to act for the accomplishment of some just and useful pur- pose, (w) § 482. The courts vested with the power to issue writs of mandamus are usually only suj)erior courts, of unlimited juris- diction. The power is rarely, if ever, conferred upon inferior courts, whose jurisdiction is limited ; and if it were given to such courts the authority the}' would hold therein could only be exercised as to their inferiors. («) § 483. In California and New York, but I think in no other state, a writ of mandamus m.ay be sued out to inquire whether a particular officer has the power to perform an act or not, so that if a board of supervisors refuse to act on a claim against the county, for the reason that they have not the power to ap- prove of it, mandamus is the action to determine whether they . Supervisors, 24 How. (A;)State v. Perrine, 34 N. ,J. 2.')7. Pr. 119. (i)McGuLre v. Waterman, 5 Nev. (p)Westl)rook v. Wicks, 3l) la. 328. 382; State v. Elmore, 6 Cold. 531. MANDAMUS. 483 Usually, I suppose, the decision of a lower court in relation to the granting of a mandamus is itself reviewable; but in no case will an appellate court issue a mandamus to reverse the judgment of a court refusing a mandamus. (q) The remedy is by appeal direct. § 485, A writ of mandamus is not available in reference to mere obligations arising from contract involving no office, trust, or station, partly for the reason that the legal remedies are adequate to such obligations. (r) § 4S0. As to the power of issuing a m((nd(unus to state executive officers, this was partially discussed in the chapter €n Constitutional Limitations, in the first part of this work, and we shall not long delay on it here. The general jDrinci- ple in regard to a governor is that in the exercise of the supreme executive power of the state he must have an official discretion, necessarily uncontrollable by judicial pow'er: yet in regard to a mere ministerial act, which might have been enjoined upon any other officer, and which alfucts any spe- cific private right, he may be held amenable to a mandamus, (.s) although courts will but hesitatingly grant a writ against him, and that in a case, probably, of extraordinary emer- gency only. It is held that "it is not by the office of the per- son to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined. "(D A governor cannot be commanded even to exercise his political discretion, however. But, where he has no discretion as to performing a ministerial act, the act is, of course, compellable by mandamus; as w^herc his duty is to sign acommissiou(») or apateiit(r) absoluiely. A writ will not lie against a governor to compel him to return a bill to the secretary of state, which, being passed by the legislature, was put into his hands for consider.itioii. and which, as alleged, has not l)een returned to the proper house, (ry)l)c (Jroot's Cmsc, C Wall. 407. (/)Marl»iiry v. Madi.soii, I t:riiiuli, (/•)Stato V. Tuniinkc, Ki O. f^l. ITd. 3IY (-MlMauriidcr f. Swaiin. -'' Mil. (sjSUite V. Chaso, f) O. Si. 53.-). 2U7; Grooinc o. Gwiiui, 4;j .Md. aTL ^?;).Mid(llctoii ». Low, 30 Cal. 5'J!). 484 MANDAMUS, \vithin the time limited by the constitution, with his objec- tions. (?/•) It has been held that where a person charged with crime tlees to another state, and a demand is made in due form for his extradition, there is no power in the United States gov- ernment to coerce the surrender, notwithstanding it is a mereh^ ministerial act, and the United States statute says expressly "it shall be the duty" of the executive, on a requisition, to make the surrender. The supreme court of the United States say hereon: "The demand being thus made, the act of con- gress declares that 'it shall be the duty of the executive authority of the state to cause the fugitive to be arrested and secured, and delivered to the agent of the demanding state.* The words 'it shall be the duty,' in ordinary legislation, im- ply the assertion of the power to command and coerce obedi- ence. But, looking to the subject-matter of this law, and the relations which the United States and the several states bear to each other, the court is of ojiinion the words 'it shall be the dut}^' were not used as mandatory or compulsorj^, but as declaratory of the moral duty which this compact created when congress had provided the mode for carrying it into exe- cution. The act does not j^rovide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the executive of the state ; nor is there any clause or provision in the constitution which arms the government of the United States with this power. Indeed, such a power would place ever}' state under the control and dominion of the general government, even in the administra- tion of its internal concerns and reserved rights. And we think it clear that that the federal government, under the con- stitution, has no power to impose on a state officer, as such, any duty whatever, and compel him to perform it. For. if it possessed this power, it might overload the officer with duties which would fill up all his time and disable him from i)er- forming his obligations to the state, and might impose on him duties of a character incompatible with the rank and dignity ((c)People V. Yates, 40 111. 12G. MANDAMUS. 48"") to which he was elevated by the state. It is true that con- gress may authorize a particular state officer to perform a particular duty, but if he declines to do so it does not fol- low that he may be coerced or punished for his refusal. And we are very far from supposing that in using this word 'duty" the statesmen who framed and passed the law, or the presi- dent who apjjroved and signed it, intended to exercise a coercive power over state officers not warranted by the con- stitution. But the general government having, in that law, fulfilled the duty devolved upon it by prescribing the proof and mode of authentication upon which the state authorities were bound to deliver the fugitive, the word 'duty,' in the law, points to the obligation on the state to carry it into execution. ****** jj. ^ould seem that when the constitu- tion was framed, and when this law was passed, it was confi- dently believed that a sense of justice and of mutual interest would insure a faithful execution of this constitutional provis- ion by the executive of every state ; for every state had an equal interest in the execution of a compact absohitely essen- tial to the peace and well-being in their internal concerns, as well as members of the Union. Hence, the use of the words ordinarily employed, when an undoubted obligation is required to be performed, ' it shall be his duty.' But, if the governor of Ohio refuses to discharge this duty, there is no power dele- gated to the general government, either through the judicial department or any other department, to use any coercive means to compel liim."(.r) i^ 4S7. A state treasurer is, of course, liable to niaiKhiniiis in the performance of his ministerial duties in paying out money, but the writ cannot be invoked, by a creditor of the state, to compel him to make a certain distribution of funds, not yet in his hands, but to be thereafter received. (//) He may be required to countersign warrants on state contracts, even where there is no money in the treasury; and the audi- tor to issue them.(^) Bat in Texas the executive officers are (;/•) Kentucky w. Governor, 24 1 low. (//)Sliite ♦;. Duhiu-Ict, 24 Lu. An. 1(N_11(I. T' (j)Poople V. Scc'y of Slate, 58 111. 'Jl. 486 MANDAMUS. held not to be subject to the judicial power, iu any way, aa to their management of the fiscal affairs of the state, etc. (a) § -1:88. In Kansas it is held that a secretary of state is compellable to issue a certificate of election to a candidate chosen, on a due authentication of his claim to the office. (i') And so, in Illinois, a clerk may be compelled to answer to a manchfutii.s in regard to issuing a certificate of election, and it is no answer that he had already issued a certificate to the relator's competitor, who on the certificate had been reg- ularly commissioned by the governor. A peremptory -ma;?- dnmiis will issue, not to oust the incumbent from the ofiice, but simpl}' to compel the issuing of another contradictory cer- tificate, leaving the clerk and the party to extricate them- selves as best they ma}' from the entanglement. (c) § 489. A writ of inandainiis may be issued to an inferior court, and it is then the duty of the latter to render implicit obedience, ((0 although, as before stated, its proper discretion cannot be interfered with; but in everything which parties have a right to demand, such as issuing process, hearing the cause, rendering judgment, etc., a niaii(l(tinu>i may be brought to enforce duty. While a writ cannot be used to compel a judge to vacate an order (e) from which an appeal may be taken, and generally even where an appeal may not be taken, yet, on the other hand, it can be employed to compel him to make an order in the progress of a cause, (/) or a final de- cision, (9) or to receive and enter a verdict, (/t) or tore-instate a cross-bill dismissed improperly before the final hearing of a chancery cause. (i) Where an appeal has, as alleged, been improperly dismissed by an inferior court, iihindamus will not lie to compel its re-instatement and a hearing, (J) nor to correct an erroneous judgment, (A) nor to force the recall of (^')H. K. Cu 7!. Haii(lolpl). 24 T(;.\. (.^jCowan v. Doddri(i.?e, 22 Gratt. .•32;i. 4;-)'.). (6)State «). Lawrence, 3 Kan. 95. (/(}Munkors v. Watson, 9 Kau. (c)Peop]e V. Ives, 27 111. 247. 071. (r/)Morris and .Johnson's Case, 9 (?)Thornton"s Case, 46 Ala. 3S5. Wall. 607. (j)People e. Weston, 28 Cal. 640. (()State». Taylor, 19 Wis. 560. (/.-jCariaga v. Dryden, 29 Cal. (/llbid, 531. 308. MANDAMUS. 487 an appealable order made after judgment, (7) nor to issue an injunction, (///) nor to require a judgment of acquittal in a criminal case,(/i) or the setting aside of a judgment entered improperly at a subsequent term,(o) or rectify refusal in a pending case to discharge a garnishee, (/>) In Alabama an order granting a new trial may be set aside by means of a mandavnropriiiti()ns made by law, these conditions must be strictly fulhiled, under all circuinKtances, («)People V. IJreiinan, 4") W.xrh. (/pjJ5:il)c()ck t). (^todricli, 47 Cul. 458. •■>"'^- (B)State V. Supervisors, 2fi Wis. (,c)P<'opl(' «. Supervisors, .0:j liarb. 81. ■"''!"■ .y)])ay f). Oillow, :5lt ('••il. 50G. 494 MANDAMDS. before a mandamus can lie to order the payment of money; and a mere contract of the governor and council, under a resolve of the legislature, to establish the compensation of a state agent or commissioner, is not an appropriation. (^) A court cannot interfere with the discretion of a municipal corporation in regard to public improvements: as, for instance, it cannot review, b}' mandamus, a refusal of the common council of a city to cause an improvement to be made in the streets, and paid for out of the general funds, against their judgment of its expediency. (a) § 49.3. Where a ferry company are entitled to collect such tolls as a mayor and aldermen may determine, according to certain regulations prescribed by statute, and are entitled to have new rates established when existing rates do not pro- duce a certain sum, and where application is made b}' the company to the mayor and aldermen for new rates, accom- panied by proofs of the insufficiency of the present, and the mayor and aldermen refuse to act thereon, mainlainxs lies to compel their action. (/>) § 496. As to private corporations, a writ will lie to require a railroad company to grade their track within the limits of a city so as not to obstruct needle sly the streets and al- leys, (c) Also to require the deliver}- of grain in bulk to a particular elevator to which the grain had been consigned along the route. And in such a case it is no answer that the company had so refused to deliver it because it could not do so without great additional expense, nor that it had entered into special contracts with owners of other elevators for ex- clusive delivery to them ; nor that, under its charter, it had a right to establish its own rules and regulations, and so had never held itself out as a carrier of grain in bulk, except on the condition that it should choose the consignee, and that this had become a custom and usage of its business, so that it could not be required to go beyond this limit ; these excuses (£)Weston e. Dane, .51 Mi-. 4li3. {h)Fen-y Co. v. Boston. 101 ^lass. (^O^Iichigiin City v. Roberts, 34 4!'l. Ind. 472. (r)R. 11. v. Lawrencelmrjr. lu Ind. 489. MANDAMUS. 4<»5 .all being in contravention of its duties cas a common car- rier, which require it to avoid all contracts, and all rules and regulations, which make injurious and arbitrary discrimina- tions between individuals. (tZ) Where one subscribes to the stock of a corporation, on the condition in part that he should receive a life pass over the road for himself and family, he cannot bring a writ to com- pel the issuing of the pass while any part of the subscription remains unpaid, even if he can do so on a full payment. And it has been held, also, that in snch a case, the subscrip- tion being in writing, parol evidence of the agreement to issue the pass is not admissible, (e) Transfers of stock, when refused, are enforceable by man- damus, even if the demand is made by letter,(/) but not where there has already been a transfer to another than the relator, j^rima facie regular, even if there is reason to doubt whether the transfer was not made to defraud creditors. (//) And a gas company, as well as other corporations, can be compelled by writ to issue certificates of stock to the owners thereof, unless there is a dispute as to the ownership. (/<) And not only so, but a writ will be granted to require a company to furnish gas to persons having a right to receive it on offering to comply with the usual terms. But it is a sufficient excuse that the applicant is already in debt to the company, or that he is unable to pay for the gas.(/) § 497. A mandamus will not be awarded to admit or restore a minister, wrongfully excluded from his pulpit by the cor- porate trustees and congregation, unless he has some tem- poral right annexed to his spiritual functions, such as an -endowment, or fixed emolument, or salary. For, if he is to be supported only by voluntary contril)utions, bis otKce is merely a spiritual or ecclesiastical office, and a wrongful ex- clusion violates, therefore, no legal right, so that a court of law has no basis of jurisdiction therein. J^^ut a vKnulamns (rf)Il. 11. V. People, r>ii 111. 372. (r/)Stiite f. Foundry, etc., Co. :}2 (<;) Irwin v. Lee, 34 Irul. 320. N. J. 440. (/)Slatc V. 11. li. 25 Lu. Au. 25. (/<)Stal.o «. (Ja» (Jo. 2.'. I-ii. 413. (/) People fi. (tas ("o. 4.') Harli. 137. 49o :\IAXI)A!MUS. lies where there is a temporal right attached to the functions of the office, for the violation of which the law affords no specific remedy, and there would be, otherwise, a failure of justice in respect to such legal right. (,/) And, as to a member expelled, the principle is much the same. And it is also the same as to a voluntary organiza- tion other than a church. A member may be restored by miniddinus to any "substantial right" of which he has been deprived by the action of the society, wrongfull}^ according to its constitution. (/c) Courts will not interfere to force a person to receive a par- ticular pastor, remain a member of a church organization, or attend worship at any place. § 498. A bid for the awarding of a contract, if refused^ may be enforced, and its acceptance enjoined by mandamus^ if it in all particulars conforms to the conditions imposed, so- as to give a right to the contract, (/) but not where a discre- tion is left with the contractors to decline all bids which tliej^ thought excessive or disadvantageous; and the only impera- tive obligation on them is that, when they do contract, it shall be with the lowest bidders. This gives the lowest l)id- der no right to invoke the authority of the court to compel a board to make a contract with him.(»?) § 499. As to elections, where an ordinance provided that the two branches of a city council should, in convention, an- nually appoint a street commissioner, and the usual time passed by without a meeting, it was held a meeting to elect could be properly commanded by writ.(») And so with regard to an election for successors of the present municipal officers, whose duty it is to call an election and who refuse to do so.(o) And canvassers, whether state or local, can be required by (j) Union Church v. Sanders, 1 (»;)People v. Contracting; Board, Houst. 128 ; Feizel v. M. E. Church, 03 N. Y. 382. !• Kan. 597. (/tj-^t'toruey General v. Liiwreuce, (Ajliochler v. Mechanics' Aid Soc. Ill Mass. 91. 22 Mich. 91. (o)People v. Fairbury, 51 III. (^jPeoplet). Contracting Board, 46 150. Barb. 256. MANDAMUS. 497 maudaiuiis to make the count of votes cast,(p) unless in a case where no legal right can be established thereby, as where an election is held when no vacancy exists in oifice.((7) And, also, a writ will be granted to compel canvassers to declare the results of an election, and so certify to the persons elected, (r) § 500. Where a writ of maiuhiinus is served on an officer, who does not remain in office until judgment is entered, the judgment is void and cannot be executed as to the succes- sor, usually, (s) § 501. A mandamus is not the proper proceeding to try the right to a public office. (i) Nor can an attorney general be properly commanded by writ to institute proceedings in quo tvarranto.(u) Sometimes, however, mandamus and quo ivarranto may be concurrent remedies as to an office — the lat- ter to oust the incumbent, and the former to require the instalment of the relator in the vacated place. (/•) And, if a person is the actual occupant, a mandamus is held to be the proper remedy to shield him from interference in the discharge of its duties. (?r) § 502. Although the right to an office is not to be inquired into on a mandamus, yet a demand for room, keys, books, pa. pers, etc., may be thereby enforced. (x) And, even where the secretary of a railroad company bought a set of books out of his own mone}' and used them for the entries of the company, it was held that his possession in that way was the poses- sion of the company ; that he had no right to take the l)ooks with him on going out of office; that he had no lien on them either for his services or the purchase money, or for the occupation of his premises by the company; and that the com- (pjSlate e. Gibbs, lo Flor. 71. (MJFcople v. Attorney ({eiicral, 3 (9)Lcavenwoilli (."o. v. State, 5 Abb. Pr. i:J2. Kan. (JSs. (w)llu.ulie.s v. iiw^lw^, 44 Ala. (r)Bradtiel(l v. W'arl, M la. 2!):'.. ()99. {,s)Secretaiy «.M(;(7anabau, ft Wall. Ml^'.ople r. Sclinrniiain, 12 How. :20s. Pr. 12f). (OPeople n. Detroit, Js Alicli. (./iStatc v. Lagarde, 21 La. An. 338; Warner r. Myers, 3 Oregon, 18. 220. V.l— 32 498 MANDAMUS. pany had a right to a peremptory mandamus for the delivery of the hooks. (^y) However, in Missouri, where one was em- ployed hy the county court to survey all the public courts of the county and plat them in a suitable book, and after receiv- ing the contract price regained possession of the books and refused to deliver them, the court held a writ would not lie to recover the books, on the ground that he had not held any official or quasi official position in the employment. (-2') The treasurer of a religious incorporation may be compelled to deliver up the books pertaining to his office when he retires from it. (a) § 503. A mandamus is not usually a proper remedy to try the question of the location of a public highway, as between the public and the land-holders over whose land it is to be laid, although it has been held that the court has herein a discretion as to the granting or withholding the writ.(/>) § 504. Where the clerk of a board of supervisors issued, on the order of the board, a county warrant, but neglected to seal it with the county seal, it was held that his successor might be compelled, bj' ma)idamus, to seal it; and that it would be no defence that there is a speedy and adequate remedy at law, by an action on the bond of the former clerk, by whose negligence the warrant was left defective, on the ground that the county is a political corporation, having the attribute of perpetual succession, and the action of mandamus is not against the person, but against the officer of a corpora- tion, whoever he ma3"be.(c) And, therefore, such a proceed- ing does not abate bj' any changes in officers; as, for exam- ple, changes in a municipal board b}' resignations and re-ap- pointments, (rf) § 505. The clerk of a county court, or other officer whose duty it is, can be compelled to execute a deed to one who has a valid tax certificate, but to whom a deed fatally defective has been issued ; the execution of a void tax deed being re- (j/)State V. Gall, 32 N. J. 289. (Z')Peop!o «. Curyeii, 16 111. 547. (j)State V. Trent, 58 Mo. 572. (c-lPrescott ♦;. Gouser, 34 la. 176. (a)St.Luke'sChurch,etc.,f;.Slack, (d)County Coram'rs v. Biyson, 12 7 Cush. 238. Flor. 282. MANDAMUS. 4:9!"> garded as equivalent to executing none at all.(<') Under the present statutes, however, the commissioner of the general land-office, and the secretary of the interior, cannot be com- pelled to issue a patent. (/) A mayor, or other officer, may be commanded to sign a contract in a proper ca,se.(g) § 500. In Michigan it is held that a mandamm will lie to compel the admission of a colored child into the public schools. (/<) But it is held otherwise in California, provided separate schools are maintained for the education of colored children, (i) In Massachusetts mandamus lies to enforce the right of a member of a school committee to act as a member of the board, to the exclusion of a person whom the other members recognize and permit to act in his stead ;(,/) which appears to be an exception to the general rule, that the right to an office is not determinable in this manner. However, when a party is aggrieved by the action of a board of school directors, and is entitled to an adequate appeal to the county superintendent and thence to the state superintendent, the courts will not interfere. ( A- j § 507. Nor will a court compel a survey, where there is a legal impediment only to be removed, by an adjudication of the locator's right to have the land selected, located, and sur- veyed. (^) § 508. In addition to what we have already considered in this chapter, relative to the amenability of inferior courts to writs of mandamus, we mention the following miscellaneous particulars : A justice of the peace, in recording his judgments, is re- garded as a ministerial officer, and a party aggrieved may liavo a writ to require him to make a true record of a judgment he has rendered, and to give a copy of it to the party when ])r()ji- (e)Clippinger v. Fuller, 10 Kan. (//) People ♦). Hd. Kdncalidii, is 381. Mich. 4(11. (f) Secretary v. McGanahan, 9 (/)\Var(I v. Flood, 4s Cal. r.7. Wall. 29S. (jjCoiilin v. Aldricli, 98 Mass. .O.'i'^. ((/jState V. Mayor, 35 N. J. 396. (/t)Marshall v. Sloan, :ir> la. 44.';. (;)Holioway v. IloUoway, 30 Tex. 177. 500 MANDAMUS. erly demanded; and the superior court, it is held, has juris- diction to determine whether the record or the copy is correct or not.(m) In New York mandamus will lie to compel the commis- sioner of jurors, who is a mere ministerial officer, to strike off of the list of jurors the name of a person not liable to jury duty.(«) And also to cause the clerk of an inferior court to issue execution on a judgment. (o) And to require a county judge to admit a certified will to record and issue letters testament- ary. (;;) A court will not, by mandamus, compel obedience to a writ of habeas corpus issued by a lower co\ii't,(q) because, if the lower court has authority to issue the writ, it has authority to compel obedience itself, § 509. Where respondents return a legally sufficient cause to the alternative writ, though it be false in fact, the court will proceed no further until, in an action on the case for a false return, or by criminal information, the return is falsi- fied; and then it will issue a peremptory writ,(r) because a return, until thus falsified, is to be taken as true;(s) and the court cannot thereon inquire into disputed facts. (f) An alternative writ, however, is amendable so as to pre- serve the symmetry of the proceedings throughout. (?/) § 510. As to who may be a relator the rule is thus stated : This "depends on the object to be attained by the writ. Where the remedy is resorted to for the purpose of enforcing a private right, the person interested in having the right en- forced must be the relator. The relator is considered as the real party, and his right to the relief demanded must clearly appear. But, when the object is the enforcement of a public right, the people are regarded as the real party, and the re- lator need not show that he has any legal interest as such in the result. It is enough that he is interested as a citizen in (;//,)8mith V. Moore, .'>8 Conn. 105. (g) People v. Edwards, 6(5 111. 59. (r^People v. Taylor, 45 Barb. 129. (r)Dane v. Derby, 54 Me. 97. (i9)People V. Clerk, 2 Abb. Pr. (.s)Swan «. Gray, 44 Miss. 395. 309. (^)Beaman f). Police, 42 Miss. (p) Williams v. Saunders, 5 Cold. 242. 60. (instate v. Charleston, 1 S. C. 30. MANDAMUS. 50 1 having the laws executed, and the right in question en- forced." (i') In California it is held that, if an action be brought in the name of the people, and it appears that the people are not interested, but only the relator, the writ will be dismissed at once;(^t') but in some other states the name of the people is used even in cases intended to secure private interests. See supra in this chapter, and notes. As to the nature of a relator's interest it is held that it must be, if the action is in his own behalf, an interest distin- guishable from that of the communit}^ at large, so that a pri- vate person, whose only interest is that of a resident elector, cannot appl}' in his own name, as plaintiff, to compel an order for a vote on the question of removing the county seat.(j;) The rule that a person cannot bring an action at law against a partnership, board of trustees, or other boards of which he is a member, does not apply to an action of mandamus. [y) A writ will lie in behalf of a non-resident, illegally assessed, to compel a correction of the assessment. (-2') When an alternative writ is prayed against two persons it must properly be allowable against both, or it cannot issue at all. (a) (®)City of Ottawa «. People, 48 (;/) Cooper «. Nelson, 38 la. 440. 111. 240; People ». Halsey, 53 Barb. (2)People v. Assessors, 44 Barb. 547. 148. (w) People V. Pacheco, 29 Cal. 211. (a)People v. Yates, 4U ill. 128 (.r) Linden v. Supervisors, 45 (Jal. 6. 502 PROHIBITION NE EXEAT. CHAPTEE XVI. PROHIBITION— A'£ EXEAT. i 511. Distinctious. 512. Nature of tliu writ of prohibition. 513. Its design. 514. As to the mayor of a city. 515. As to the levy of taxes. 51(3. (yoniiection w;th appellate jurisdiction. 517. Its object is not to correct errors, but to restrain courts. 518. Contempts. 519. Decline of nr exeat writs. 520. Its stains in New York. 521. Purpose of the writ. 522. Nature of debt. 523. Trover. 524. Partnership settlements. 525. Divorce and alimony. 52P. No remedy at law. 527. Affidavit. 52S. Power of a justice of the peace. 529. Enforcing specific performance — is.suing in vacation. § 511. The writ of prohibition differs from an injunction mainly in this : that an injunction lies to restrain parties, and prohibition to restrain courts ; and from mandamus in this : that its pur^DOse is to restrain judicial proceedings, while a vuni(himus is used to command the performance of ministerial duties, imposed by express or plainly implied requirements of the law. It agrees with both injunction and mandamus in this : that, where there is an adequate remedy a^t law, it is not available. (a) And so, in an equity case, the j)etitioner must have sought all available relief, by moving to dismiss the cause for want of jurisdiction in the court itself, before he can obtain a prohibition. Hamilton's Case, 51 Ala. 02. A l^lea to the jurisdiction must be filed and overruled before a (a)Statc V. Braun, 31 Wis. 606. PBOHIBITION NE EXEAT. 503 jurisdiction will lie. State v. Judge, 29 La. An. 806; Barnes V. Gottschalk, 3 Mo. App. 111. And where there is a statu- tory mode of testing contested elections the writ is not avail- able. Kemp V. Ventulett, 58 Ga. 449. So, if the action of a court is subject to review in any ordinary mode of appeal, the writ will not be issued. (6) But it is held, in Alabama, that a prohibition will be awarded to vacate a final decree, or pre- vent its enforcement, which is a nullity, and from which, on account of the entire absence of adverse parties, no appeal can be taken. Lyon's Case, 60 Ala. 650. § 512. Moreover, it has application only in uncompleted acts, to prevent the doing of some act about to be done. So, if the court to which the writ should be issued has already disposed of the case, so that nothing remains which the court can do, either in the way of executing its judgment or other- wise, no prohibition will issue; and this is the case even though the final disposition was made after the judge had been served with a rule to show cause why a writ should not issue, and even though similar cases may still be pending in the same court. (c) § 513. The writ, as above intimated, is not available to restrain the performance of ministerial acts, such as collecting taxes, locating county seats, and the like, however erroneous such ministerial acts may be.((/) And yet there is an appar- ent exception to this rule in Massachusetts, where an author- ity to lay out and widen streets in a city is exclusively in a board of aldermen, and in another city this authority is exclusively in the common council. A statute in 1866 pro- vided that the former board of aldermen should retain their authority in this respect, and should also have power to assess betterments on abutting lots. In 1867 a statute was passed which declared the provisions of the former act were "extended and made applicable" to the latter city. In this case it was held that the late act did not give the aldermkn of the second city authority to widen streets and assess a betterment, (6)People V. Circuit Court, 11 ((ijSlate v. Clark Co. Ct. 41 Mo. Mich. 393. 44. (c)U. S. V. Hoffman, 4 Wall. 158. 504: PEOHIBITION NE EXEAT. and that if they attempted so to do they might be restrained b}' prohibition. ((?) § 514. It has been held that a mayor being the chief exec- utive officer of a city, and as such authorized to have super- vision over other officers in the discharge of their duties, he cannot be prohibited from proceeding with an investigation of charges against the chief of police, because in this matter he does not act as a court, but only as such chief executive officer, and is therefore subject to the supervision of the courts therein. (/) § 515. Prohibition does not lie against the lev}^ of an ille- gal tax, perhaps partly because in a proper case a court of equity will grant an injunction upon such lev}^ and partly because it is rather a ministerial than a judicial act; although in Georgia parties seem to have no remedy in advance, and it is declared that they must pa}^ their tax, and then pursue their remedy against the tax collector as an individual, (g) which is a very circuitous route in the way of justice. § 516. In the United States supreme court it is held that a writ of prohibition is not issuable therefrom in cases, such as criminal cases, where it has no appellate jDower given by law, nor any special authority to issue the writ. (7*) And the same doctrine is held in Kentucky, and it is placed on the ground that "if a proceeding for prohibition may be instituted in the court of appeals, it could be done only in a case where, in the exercise of its appellate jurisdiction, it has the power of controlling the inferior court by a direct revision of its judicial acts. For, if the court has no appellate jurisdic- tion in tlie case, of which the court below is improjDerly tak- ing cognizance, it has ho jurisdiction at all over the case, and therefore cannot interfere by writ of prohibition. "(i) § 517. The object of a writ is not to correct error either of law or fact, whether in admitting evidence(ji) or anything (e)Day v. Springfield, 102 Mass. (/i)C4orclon's Case, 1 Black, 503. 31(1. (?)Sasseen f). Hammond, IS B. (/)Busch V. Ilardwicke, 23 Gratt. Mon. 674. 52. ( '')Leonard's Case, 3 Kich. 111. (/yjCodv V. Lennard. 45 Ga. 85. PROHIBITION — NE EXEAT. - 505 «l8e. Its object is to restrain inferior courts from exercising jurisdiction where they do not properly possess jurisdiction at all, or else to prevent their exceeding their limits in mat- ters of which they have cognizance. (/t) And, if the inferior court has jn-ima facie jurisdiction, a superior court will not interfere by prohibition. State v. Judge, 29 La. An. 360. And the writ, as a prerogative writ, is always subject to a sound judicial discretion. Supervisors, etc., v. Wingfield, Judge, 20 Gratt. 333. In Indiana it has been held that it is sufficient that some collateral matter arising in the cause be beyond the jurisdic- tion in order to justify the writ. (7) In California, however, it has been decided that the action of a board of supervisors will not be arrested unless the proceedings themselves are absolutely without, or in excess of, their jurisdiction. (m'l In New York a j)rohibition from the supreme court lies to prevent the exercise of unauthorized power in a cause or pro- ceeding of which the inferior tribunal has jurisdiction, no less than when the entire cause is without jurisdiction ;(n) the original design of the writ being that it should prevent an encroachment of jurisdiction. (o) But the transgression must be palpable in order to sustain the writ, for the awarding of the writ is largely discretionary; so that, although it will be issued where visitorial or other authority is plainly usurped, yet it will be refused where the general scope or purpose of the actitm is within the jurisdic- tion of the inferior court. A mere outstepping of its author- ity in a portion of its judgment, or any other error in its proceedings, is only a ground for review or appeal, and not of prohibition. (/>) So, although a bill in chancery may be fatally defective in averments, may abound in imperfections, and may even be filed in a district where the defendants are not liable to be sued, yet these are mere matters of defence, and cannot be reached by a writ of tliis character. (7) (AjPeople »). Marino Court, :5(J (/ijAppo »'. IVoplc, 2(1 N. Y. oSl ; Barb. 341. Sweet v. Ilulherl, .01 13arl>. 0I3. (i)Comm'rs «. Spitler, 13 Ind. 230. (ojTIionias v. Mead, 3(i ]\Io. 233. (m)People v. Supcivi.sor.s, 47 Cal. {7>)People v. Court, 43 Unit.. 278. gl^ (7)Grcene'8 Case, 2!) Ala. .12. 506 PEOHIBITION NE EXEAT. § 518, A writ of prohibition in enforceable by contempt for disobedience, (r) § 519. Writs of ne exeat are doubtless waning, and will probably become obsolete in no great period of time. In civil actions, within the provisions of the civil code, it no longer exists, in Ohio, Cable v. Alvord, 27 Ohio St. 654. In New York it has been held that although the codifiers intended to abolish the writ, yet, failing to do so expressly, the remedy still continues to exist, for a repeal by implication is not fa- vored; so that, unless a later act mentions the former in some way plainly indicating an intention to repeal it, the repeal, though designed, is not effected; and the court remark that, "if an incidental provision in an act be deemed a repeal of an express provision of a former act, it will make the confusion which we already have in our law 'worse confounded,' will mar any harmony that is left in it, and will open the door still wider to fraudulent legislation ;" (.•j) a reason not very compli- mentary to average legislatures, § 520. Moreover, it is held by the court of New York that the writ is indispensable; which may, perhaps, account for the above sneer at the ineffectual attempt of the codifiers to extinguish it; and it says: "At wiiat particular period this writ was introduced into the practice of the English court of chancery, and to what particular purposes it was originally applied, ma}^ be involved in some obscurity; but none will deny that the power to issue, and apply it to those uses sanc- tioned by immemorial practice, is an essential and indispen- sable attribute of the equity courts. Without its aid, or that of some other equivalent process, the equitable jurisdiction vested in this court by the constitution must fail, and its functions in regard to many subjects of equitable cognizance become useless, for decrees and orders are senseless and unmeaning ceremonies when the tribunal which makes them is shorn of the power to carry them into execution. Upon (r)Howar(i v. Tierce, 3S Mo. 2'.IG. (.s)Breclv v. Smith, 54 Barb. 214 PROHIBITION NE EXEAT. 50T the facts before the court, in this action, (wherein the opin- ion was delivered,) the statute authorizes a decree for a sep- aration from bed and board forever, or for a limited time^ together with such order and decree for the suitable support and maintenance of the wife bj- the husband, or out of his property, as the nature of the case renders suitable and proper. But if the husband who owes, and has the abil- ity to make, this just reparation to his injured wife, cannot be- restrained within the jurisdiction of the court during the pendency of the litigation;* if he may withdraw himself to the distant shores of the Pacific, there -to enjoy his properly and ample salary at his leisure, while she remains to labor as a menial for subsistence, — the provisions of the statute are,, in respect to her, a mass of unmeaning words, and any decree which the court might make will be a barren and fruitless pro- ceeding. The argument ab inconrodenti, however, will be u.ua- vailable in the face of a legislative enactment ; and, if the power to keep a defendant within the jurisdiction of the court, in a case like the present, until a decree can be made,, is taken away by the code of procedure, then, whatever may be its value, the courts have no other duty but to sub- mit. "(0 § 521, As to the purpose of the writ the same opinion goes on to say: "Tiie writ of ne exeat bears no resemblance to the mesne or final process of the common-law courts. Its. primary purpose is not to arrest the defendant, nor to put him in safe custody during the pendency of the litigation. Such is not its mandate. It commands the sheriff to cause the defendant to come before him and give him sufficient security that he will not go without the state into foreign parts with- out leave of the court; and if he shall rcfusa to give sush security then to commit him to the common jail of the county until he does so of his own accord. Until he refuses to givct the requisite security he cannot l)e restrained of his liberty; and wlien he has given it he may go wherever he pleases, *Rulauxiliaiyproce('diiij;sl)y at- (OBusliiicll v. Buslniull, I'. Hinl.. taclmicut could be made to hold a 401. pait\-. 608 PROHIBITION NE EXEAT. provided he is within the jurisdiction of the court when its process to enforce the decree issues. In the meantime he is not deemed to be in the custody of any person. That the writ was formerly used as a means of enforcing equitable debts does not affect the argument, for the rule is that when the person of the defendant cannot be taken under the decree by execution or attachment the writ will not be issued. "(?/) With all due deference we must say that all the characteris- tics of an arrest seem to meet in the essential nature of the proceeding. The Massachusetts court has thus defined it : "Upon the question, in what cases this writ is to be granted, according to the course of i)ractice in chancer}', the authorities are somewhat conflicting, and it is not easy, upon a hurried ex- amination, to draw a precise and definite line between the cases in which it will and will not be granted. This difli- culty may, and probably does, arise from the fact that the question is commonly decided upon a summary application to a judge, at chambers, upon an ex i)arte hearing, and without the time for deliberation usually taken for the decision of important questions. The general rule of practice to be gathered from the cases, we think, is that the writ is to be granted only in a case of equitable ascertained debt, to which affidavit can be made with a good degree of certainty, or when it can be shown, b}' reference to accounts or to other author- ized documents, to the reasonable satisfaction of the court, that something in the nature of an ascertainment of a debt has taken place, whereupon a debt arises. But we think that the writ is not grantable when the account is open and unliquidated, although the plaintiff states in his affidavit that a certain sum is due. Such an allegation, although in terms the statement of a fact — that is, of the defendant's actual in- debtedness — must, nevertheless, be qualified b}' the subject- mattei to which it relates ; and where it relates to a long unliquidated account, or to facts which are future and contin- gent, it can amount to nothing more than a strong declara- tion of a confident expectation or belief, and is not a suf- (!/)Ibid, 40-i. PROHIBITION NE EXEAT. 509 ficient ground for issuing the writ, unless it is accompanied and supported by proper accounts and documents. (r) § 522. The debt in general must be not a legal obligation, but an equitable debt, and then either be certain or capable of being reduced to certainty, ex parte.{ic) However, in some states, as in Illinois and Indiana, the writ may be invoked on the ground of fraud, in case of a legal obligation. In Indiana if the maker of a promissory note is about to depart the state, and take his propei'ty, the payee may sue out a writ of ne exeat, even if there is security on the note — the affidavit alleging that the maker is about to take his property away, so as to defraud the payee and the surety. Fitzgerald V. Gray, 59 Ind. 254-. And the necessity that it shall be equitable ni its nature is not obviated merely by a code abolishing distinctions in the forms of action, Init leaving the essential differences intact between legal demands and equitable claims. (c) However, there seems to be an excep- tion in New York, although I do not think the language fully expresses the meaning of the court therein, as it seems self-contradictory in a measure. "The writ of ne exeat," say the court, "is in the nature of equitable bail, and to entitle the complainant to such bail there must be a pres- ent debt or duty, or some existing right to relief against the defendant or his property, either at law or in c(piity."( Ark (a;)Bonesteel v. Bonesteel, 28 Wis ■'.'^0. 248 (^t)Il)id. 510 PKOHIBITION NE EXEAT. plainant suing it out to an action for trespass and false im- prisonment, (fc) And even -where there is jurisdiction, if there be no affidavit as a basis, or if the writ be not properly attested by the clerk when issued, even by a judge at cham- bers, and though the suing out of the writ was without any express malice, (c) the liability is incurred. § 524. A writ may properh' he granted to compel the set- tlement of a partnership account, where it appears that the defendant has converted his property into money or notes, and has threatened to leave the state. (f/) § 525. And where a suit for partial divorce and alimony is pending, (c) or where the suit is for alimony alone ;(/) and in such a case application may be made, wdien the defendant is not in the state, and is not even a resident of the state, in anticipation that the writ can be in readiness to be served on him on a casual visit within the jurisdiction. Says the chan- cellor of New Jersey : "It is true that- the statute requires that there shall be satisfactory proof to the chancellor that the defendant designs quickly to depart out of the state. I think a person may have this design without actually being in the state at the time. He inay design to come quickly and to depart quickly, "((jr) and hence the necessity of setting a trap for him. And yet a writ issued in that state on Sun- day is void, and a bond given thereon will be cancelled. Jewett, Receiver, v. Bowman, 27 N. J. Eq. 275. § 52G. According to the usual rule of chancery proceedings, and of issuing any extraordinary writ, it must apjjear that there is no adequate remedy at law — that is, that the process at law is not available or not sufficient, (/i) or, in Georgia, that the party cannot be held to bail at law.(i) In that state the writ seems to have a very wide range, and to be exce^D- tional, since, by the statute of 1813, it was made available to (6)Adams v. Wliitcomb, 4G Vt. (/)Yule v. Yule, 2 Stock. Cli. (X. 712. J.) 139. (c)Bonesteel «. Bonesteel, 28 Wis. (.9)Parker v. Parker. 1 Bt'asley, 248. 107. (d)Dean v. Smith, 23 Wis. 483. (/MOnne v. McPlierson, 3d Ga. (e)McGee v. McGee, 8 Ga. 296. 573. (?)Hannahan v. Nichols, 17 Ga. 77. PROHIBITION NE EXEAT. 511 -co-obligors, as securities, when a principal or other obligor is about to remove beyond the jurisdiction; and this is applied even to a bail bond in trover. (j) Where a judgment had been obtained and an execution returned luilla bona, tlie plaintiff attempted to sue out a writ of tie exeat on an allega- tion of fraud. But the court held that as the court of law could, by issuing a capias ad satisfaciendum, effect as much, at least, as a court of equity could effect by a ne exeat, the latter could not properly interfere in the matter. Victor Scale Co. V. Shurtlef, 81 111. 313. And even if a judgment debtor has sold his goods, and is about to depart from the state, an application for a writ of ne exeat must allege that the prop- erty sold was not exempt from execution. Malcolm v. Au- dreics, 68 111. 100; Jones v. Kennicott, 83 111. 485. § 527. The jurisdiction will be exercised only on a certain affidavit, and mere fears and apprehensions of the jDarty applying are insufficient. (/c) However, it is held that the affi- davit need not state in so many words that the defendant is about to leave the state to avoid the jurisdiction of the court, but this must be a necessary inference fi-om the facts, or at least it must be a necessary inference that the defendant's departure will defeat the complainant's action in effect. The affidavit must be positive as to the intention of departing, or as to declarations or threats of that nature; j^et even, some- times, an affidavit on information and belief may be allowed, as in cases of divorce and alimony. (7) In ordinary cases an affidavit, "to the best of the knowledge and belief" of the affiant, will not justify the writ.(??i) § 528. In Indiana, contrary to the general rules regulating the writ, the statute of 1847 allowed it to be issued by a jus- tice of the peace. (>() § 529. The writ may be a necessary incident in proceed- ings to enforce a specific performance ;(o) and, owing to the necessity of promptitude, it may be issued in vacation as well as in term time.(o) (j)Wood8 f). Symmes, 2r) Gil 71. (//)[,()U(l;i(:k v. KosiMi.nrmt, 4 ^/c) Forest v. Forest, 10 Barb. 47. Irul. M-l. (i)Yule V. Yule, 2 Stock. 139. («)S:imuel v. Wiley, r>0 N. II. (m)Bryan v. Ponder, 23 Ga. 483. 354 512 ATTACHMENT CHAPTER XVII. ATTACHMENT. 530. Statutory baf5is. 531. Parties — nou-residents. 532. Joint claims. 533. Mere absence. 534. Intention to avoid process. 535. Design to defraud creditors. 536. Abscondinff or concealment 537. Having dltierent residences. 538. ]^on -resident creditors. 539. Intending to remove property or dispose of it fraudulently. 540. Title to concealed property. 541. Consti uction of aflSdavits. 542- Liabilit}' of corporations — national banks, 543. Property of decedents' estaies. 544. Nature of altidavit. 545. Actual levy. 54fi. Debts not due. 547. Kinds of property subject — supplementary note. § 530. I suppose the statutory basis for attachment juris- diction is as full in Illinois as anywhere, and so I state this- as an ensample or standard for the adjudications 'which it is the primary purpose of this work to set out and explain, so far as they relate direetlj' to jurisdiction, and not merely to procedure, etc. in that state attachment lies — "First, where the dehor is not a resident of this state. "Second, where the debtor conceals himself, or stands in defiance of an officer, so that process cannot be served" on him. "Tltlrd, where the debtor has departed from this state with. the intention of having his effects removed from this state. "Fourth, where the debtor is about to depart from this stat© with the intention of having his effects removed from this state. ATTACHMENT. 513 ''Fifth, where the debtor is about to remove his property from this state to the injury of a creditor. "'Sixth, where the debtor has, within two years preceding the tiling of the affidavit required, fraudulently conveyed or assigned bis effects, or a part thereof, so as to hinder or delay his creditors. ''Seventh, where the dealer has, witliin two years prior to the filing of the affidavit, fraudulently concealed or disposed of his property so as to hinder or delay his creditors. "Eighth, where the debtor is about fraudulently to conceal, assign, or otherwise dispose of his projiert}^ or effects, so as to hinder or delay his creditors. "Ninth, where the debt sued for was fraudulently con- tracted on the jjart of the debtor : jyrovided, the statements of the debtor, his agent, or attorne}-, which constitute the fraud, shall have been reduced to writing, and his signature attached thereto, by himself, agent, or attorney. "(a) What I take to be exceptional provisions in other states are (1) where attachment proceedings are made to apply to remov- als from county to county, as well as from the state; (2,) where they are made an ordinary preliminary to all suits at law, without reference to residence. Statutory provisions, however, I have not space to notice, further than they come within the range of jurisdictional adjudications. However, we may remark that statutory provisions must be strictly pursued. Halleij v. Jackson, 48 Md. 264. And, of course, the constitutionality of a statute authorizing an attachment may be set up in defence. Murphy v. State ex ret. !")!> Ala. 639. § 531. We will first consider the parlies subject to attach- ment process. Of these the leading class is that of non-res- idents and those about to become so. As to non-residence, it is almost wholly dei^endent upon the intention, and if one changes his ahocXe, sine animorevcrteudi, the intention of the change instantly stamps the character of non-residence upon it,(^) whereas a temporary absence (a)Kev. St. 1874, p. 152. (6)Drake on Att. (1866,) i 63. v.l— 33 514 ATTACHMENT. abroad, with the mind to return, does not usually work a change of domicile. The consequence is that temporary ab- sence never gives the right of attachment for non-residence ; nor does the fact that one is temporarily within the jurisdic- tion suspend the right, even if he has an office for the trans- action of business there, while his actual home is without the state. (c) A singular case arose in New Jersey, which rested on the usual principle, that a wife's residence is determined by that of her husband. A resident of New York, in 1859, married, in New Jersey, a woman, resident of the latter state, who went with him, after the marriage, to Europe — she intending, on her return, to continue her residence in New Jerse}', as for- merly, until the fall of 1860. This was done, and her hus- band would visit her, from his business place in New York city, on Saturdays, and return to his business usually on Mondays. An attachment was levied on her propertj^ in New Jersey, as a non-resident, for a debt she had contracted before marriage, and it was held she was a non-resident, notwith- (c)Id. § 6P. as also in Xew York; so that one's It has been held, in Illinois, that domicile may be within the state if one leaves the state with his and yet he may be a non-resident ^oods, with only a conditional in- so as to be subject to attachment: tention of locating elsewhere, pro- and it is said hereon that " resi- vided he could find a place to suit deuce implies an established abode, him, his absence does not cause him fixed permanently for a time, for to lose his residence, even if it con- business or other purposes, al- tinues for years — he having no set- though there may be an intent in tied intention of locating during the future, at some time or other, to that period — and even if he engaged return to the original domicile." in temporary business abroad. VVil- Morgan ;;. Nunes, 54 Miss. 310. See, kins?). Marshall, 80 111. 74. also, Frost v. Brisbin, 19 Wend. 14; On the other hand, the fact that Thompson's Case, 1 Wend. 43; Mc- one has a place of business within Collem v. White, 23 lud. 43; Xailor the state does not constitute him a v. French, 4 Yeates, 241; Farrow v. resident, so as to prevent the issuing Baker, 3 B. Mon. 217; Wells v. Peo- of an attachment. Wallace »'. C'as- pie, 44 111. 40. tie, 08 X. Y. 370. In order to effect a non-residence. In Mississippi, however, there is there must be not merely an inten- held to be a distinction, as to the tion to remove, but the actual fact operation of the attachment law, of removal is likewise requisite, between a domicile and a residence; Adams v. Evans, 1^ Kan. 174. ATTACHJIRNT. ni5 standing she had never domiciled with her husband in New York.(c/) In New York there is a limit placed to absence, and two or three years is regarded as constituting non-residence, even although a house is kept up within the state all the while. Thus, where one left the United States for China, to take charge of three trading vessels, in which he held an interest, and which performed several voyages to different ports in the Chinese and eastern seas, and he remained absent two years and a half, but his house in the city was kept up meanwhile, as before, he was held to be a non-resident, so far as to bring him within the statute of non-resident attachment; on the authority of Hnggart v. Morgan, 1 Seld. 422, it being declared that "the object of the statute was to provide for cases where tlie part}' would probably not subject himself to the process of our courts, within a reasonable time after judgment, by voluntarily coming witliin its reach." It was also, however, decided that the nature of the liusiness in which the party intends to be or is engaged may be looked at, to determine the probabilit}' of the duration of absence. (^r) ((Z)Hiickettstovvn Bank /'.^litcliell, 4 Dutch. '>HJ. (cjBurin y;. .Jewelt, 2 Rob. 70l. "The idea involved is wlictlier the absence is of sucli a chamcter and so prolonged that the debtor cannot be served with ordinary pro- cess. Mere absence will not suffice; the debtor must have acquired a fixed residence, though it may not Lave been intended to be perma- nent; the animus rerertendi needs not to be abandoned." McKiernan V. Massingill,(j S. & M. 375; Alston «. Newcomer, 4'2Mis8. 192; Morgan «. Nunes, 54 Miss. .{11. in Louisiana, where one leased his dwelling-house and furniture, and went abroad to be absent two years or more, traveling for pleas- ure and liealtli, and left no agent ui)on wliom summons could be served, il was lieid. by a divided court, that an attachment was rightly issued, and that the fact of the debtor's returning sooner than he expected did not alleel the pre- vious attachment. Leathers «. Can- non, 27 La. An. 523; Wyly, J., dis- sentinf/. In North Carolina it is held that if one voluntarily removes to an- other state for the purpose of dis- charging the duties of a United States officer for an indefinite pe- riod, .such duties reijuiring his con- tinued presence, he is to be regarded as a non-resident for tlie jjurpo.se.s of all attachment, notwitiistanding he may visit tlie stale, and may in- tend to return some time in the future. Wheeler v. Cobb, 75 N. C. 21. 516 ATTACHMENT. Where a manufacturer and dealer in carriages for years occupied a store-room in New York city, over which he kept a furnished apartment, and ate and slept therein, but afterwards removed his family to Litchfield, Connecticut, into a rented house, called the latter his home, and went to it every week, but continued to do business as before in New York, it was held that an attachment would lie on the ground of non-residence. (/) And the court reiterated the definition in Chaine v, Wilson, 1 Bosw. 073, that "a defendant, whose family occupy a dwell- ing-house in another state, hired by him, and who habitually passes the night of each day and the Sabbath with his family, is a non-resident. Whether a man's absence from his fam- ily be for eight hours in eaqh day or six days in each week, if he has a family living in a neighboring state, to whom he resorts for comfort, relaxation and repose, and with whom he abides whenever the immediate demands of his business upon his attention will permit, whenever sickness detains him from conducting that business, and when those days successively return on which business ceases and man rests from his labor he resides in such neighboring state, there (in every proper sense, as understood no less by those who are learned in the law than by the common intelligence of every-day life) is his home. Where one has a home, as that term is ordinarily used and understood among men, and he habitualh' resorts to that place for comfort and rest, relaxation from the cares of business, and restoration to health, and there abides in the intervals, when business does not call, that is his residence, both in the common and legal meaning of the term." It is held, in Mississippi, that it is actual residence, and not domicile, which the statute has in view, and so an absent debtor must keep moving about to avoid the eft'ect of the attachment statute fixing him as a non-resident without any regard to his intentions. The court sa}^ in defence of the rule : "Of what consequence, looking to the object of the law, is it to the creditor that his debtor has a domicile in this state if he himself remains for years, perhaps, out of its jurisdiction, {/)Murpliy V. Ikikiwiii, 41 How. Pr. 27(i. ATTACHMENT. 517 residing actually and personally in another state, and upon whom process cannot be served in any of the modes pre- scribed by statute '? But this reason, it may be said, would apply equally to the case of a debtor merely traveling abroad. A man, so far as this law is concerned, may travel without apprehension, but the moment he ceases to sustain the char- acter of a traveler, and for purposes of education or business takes up a fixed though temporary abode, he becomes for the time being, in the eye of the law, a non-resident of the state, and liable as such non-resident to have his property which he has left behind him attached for the payment of his debts. There is nothing unreasonable in this rule. On the contrarj^ while extending all due indulgence to the love of travel, it shows no more than a proper regard for the claims of domes- tic justice. "(^) Wliere an attachment is begun against a non-resident it is not discharged by the defendant becoming a resident during the pendency of the suit. (A) § 532. Where a claim is a joint one, and one of the joint debtors is a non-resident, the writ of attachment lies against him provided the debt is a joint and several one, otherwise not ; and it is sometimes provided by statute that all joint debts are also several, even if not so expressed in the note or other evidence of indebtedness. (J) But this docs not apply to a partnership where one member of tlie firm is a non-resi- dent, since partnership liabilities are always joint. (j) If a sheriff levies an attachment on the whole of the firm property, instead of upon the debtor's interest therein merely, he may be held as a trespasser. Luddlnf/ton v. Bell, 77 N. Y. 13H. And, if the firm is insolvent, the levy is ineffectual, even when the debtor's interest only is taken. Sloanc v. I/nulsni/, 42 N. Y. Superior Ct. 399. And it is held that a lirm credit cannot be attached for the individual debt of one of the part- ners. Sweet V. Recul 12 E. I. 121 ; People's Bank v. Shri/orL; 48 Md. 427. (.9)Alston V. Newcomer, 42 Miss. (2)C;oniin-rs v. Swiiiii, 5 Kan. liHi. 293 ( /)I{einiii.ij;l()n f>. E.\i)re.s3 Co. S (/t)Lainncr v. Kdloy, W Knii. :',\:',. IJ. 1. -iO!t. 518 ATTACHMENT. § 533. Mere absence, without non-residence, may be made a ground of attachment by statute where the absence is such, as that "tlie ordinary process of the law cannot be served on him." Unless the length of time be prescribed by statute, as in Kentucky, where it has been fixed definitely at four months, there is always difficulty in defining the absence which will suffice to justify an attachment. Where there is a definite time, tlie leaving home, and not the crossing the boundary line of the state, is held, in Kentucky, to be the initial pohit of reckoning; so that, where one started to leave the state, but was detained within the state four days by a casualty, and attachments were issued exactly four months from the time he started, it was decided the attachment would \ie.(k) The Missouri court say, in regard to absence, under a statute not prescribing a definite period : "While it is. not admitted that every casual and temporary absence of the debtor from his place of abode, which, from the brief period of his aljsence may prevent the service of a summons, is a legal ground for issuing an attachment against his property, it is difficult to define the character and prescribe the dura- tion of the absence which shall justify the use of this process. It may be asserted, however, that where the absence is such that if a summons, issued uf)on the day the attachment is sued out, will l)e served upon the defendant in sufficient time before the return day to give the plaintiff all the rights which he can have at the return term, the defendant has not so absented himself as that the ordinary j^rocess of law cannot he served upon him. " * « * * j^ construing the statute it is not allowable to extend its operation to cases which are not within the evil it was designed to remedy. It is a statute under which much oppression may be practiced, and the legislature have felt the necessity of throwing guards around those against whom it may be employed. If this court should sanction its use in a case not within the true scope and spirit of the act, upon the supposition that it may be brought within its letter to that extent, the precautions (/i;)Spalding v. Simnis, 4 Met. 2^'). See note (e), supra. ATTACHMENT. 5J9 taken by the legislature to prevent the abuse of the process ■would be useless to the injured party. "(Z) § 534, But sometimes the jurisdiction is made to depend on the intention of the party to avoid service of process, and this, of course, renders the mere matter of duration altogether immaterial. And herein it is held that whether a debtor has withdrawn himself from his creditors with a view to elude process and evade their demands is a question of fact for the jury.(m) The intent is not to defraud creditors, but only to avoid process, which is considered. And the general princi- ple on which it is to be determined is thus stated by the New York court: If the debtor, "finding himself irretrievably involved, so that his failure must soon happen, has desired to be out of the way of his creditors at the time it should happen, though he has left all his property behind him, and though he was aiming to get into other business, by means of which he might ultimately retrieve himself, the inference may very properly be drawn that he has departed the state with intent to avoid the service of a summons, "(w) § 535. Yet in some states the intention is distinctly defined by statute to be a design to defraud creditors, in which case the intention merely to avoid process is immaterial, so long as it does not tend to show a positive design to defraud. This is so in Pennsylvania, where, however, suspicious circum- stances are held sufficient to show the intention, even where it is disavowed, the absence explained, and a return actually made. Thus, in a case cited by Drake, in his work on Attach- ment, a writ was issued on an affidavit of design to defraud creditors. The defendant returned and defended against the suit, urging his declaration, prior to his departure and his return, as disproof of the allegation of fraudulent design. But this was met by i)roof that he had refused to be seen by his creditors just previous to his departure ; that he had left clandestinely at night; had borrowed a small amount of money on the road, and had ordered letters sent to him under another name. On these facts the attachment was sustained (?>Kingsland v. Worsham, 15 Mo. {m)Viich »>. Waito, r, Conn. 12L ggj {/i)Morgan v. Avery, 5 JJarl). 664. 520 ATTACHMENT. against him.(o) The Louisiana court, in a similar case, said : "It is true that the defendant has shown that he has been a resident of the city for about five years, and carried on busi- ness as a merchant : that during that time he has been in the habit of absenting himself every year during the sickly sea- son, leaving an agent or clerk to attend to his business. We feel no hesitation in saying that if no suspicious circumstances existed we should concur in the opinion of the first judge in dissolving the attachment ; but the case of the defendant is that of a person charged with having, by the aid of one of the tellers of the bank, actually defrauded it of the sum of uj^wards of sixty thousand dollars; a circumstance which, in our opinion, removes every suspicion of an intended deviation from the truth in the president of the bank, who made the affidavit required by law. Notwithstanding this, if the de- fendant had made his intention to return evident he would be entitled to relief; but the consequences he had to appre- hend, from the gross fraud he is charged with having commit- ted on the bank, rendered his intention to avoid them by flight so probable that the mere circumstance of his return does not totally destroy the presumption. Men often do that which they once intended not to do. By sustaining the attachment the bank may possibly obtain a portion of the large sum of which they had been defrauded. By discharging it the de- fendant will be enabled to defeat the aids of justice, so far as he is concerned. "(j>) It is manifest that this rather rests on the ground of necessity, than the attachment statute, and that substantial justice was awarded at the expense of the legal requirements in the case. § 536. Absconding and concealing himself are governed by similar rules as to a debtor's liability to attachment, and the intent must be to evade process or defraud creditors. In Maryland it is held that if one secretly removes from his usual place of business, with the intention to evade the pay- ment of his just debts, or to injure or defraud his creditors, he will be regarded as absconding, although he may not have ('>) Drake on Att. (1866,) §,44. (^)Canal & Banking Co. ». Comlj, 1 Robinson, 231. ATTACHMENT. 521 left the state. (5-) In Illinois, where the court below refused to give the following instruction, it was held error, namely : "It is concealment to avoid service of process, no matter whether for an hour, a day, or a week ; whether with a view to defraud creditors, or merely to have time to make a dis- position, lawful or otherwise, of his property before his cred- itors get at him. It is placing himself designedly so that his creditors cannot reach him, which constitutes conceal- ment under the statute. "(r) § 587. If a married man has two places of residence at different seasons of the year, that one will be regarded as Lis domicile which he himself selects or describes, or consid- ers to be his home, or which appears to be the center of his affairs, or where he votes or exercises the rights and duties of a citizen, (s) § 538. A non-resident creditor has the right to employ attachment process for any of the causes prescribed by stat- ute, as well as a citizen. (^) § 539. Intending to remove or dispose of property fraud- ulently is a common ground of attachment proceedings. But a statute in regard to removing property must not be under- stood to apply to vessels, which, from the nature of their occupation, must necessarily be taken out of the state. (//) And, moreover, it is not to be applied to a case where only a portion of a debtor's property is removed, leaving visibly ample property of a permanent character to satisfy his debts ;('/.') but if the removal of a part only is designed to de- fraud or delay creditors an attachment will lie thereon. (/r) Also, it is held that a concealment may be effected by con- <;eab"ng facts and circumstances, as well as by concealing the goods themselves ;(.x) any deception, I suppose, by wliich the ownership may be obscured, or the creditor baffled, full- ing thus within the explanation. But threats to make a law- (9)Stoulfa «. Niple, 40 Md. 477. (//jllusscll /). Wilson. Is La. ;{(;7. (r) Young «. Nelson, 25 III. :.(ii;. («).M(.ntii-ue v. (Ja.l.lis, :{7 Miss. (sjChariton Co. v. Mobcriy, r/.i 4n(; ; Stnic »,. Mom.s, ;-iO la. 2(i(;. Mo. 242. (,r)'l':ivlnr /i. .MyiTs, MS Mo. S2. (OWard V. McKen/.ie, :V.>. Tc.x. 2117. (.r)l'nwc'!l v. Matlhcws. Id Mo 522 ATTACHMENT. ful assignment is not a concealment within the meaning of the statutes, Q/) although mere threats to make an assignment are construed to be fraudulent, unless it plainly appears that the intention of the debtor is to execute a proper assignment for the benefit of creditors. Moreover, whatever purpose would avoid a general assignment, if declared in writing and inserted in the assignment, ought, when verbally avowed by a. debtor to be the design of an assignment contemplated, to be regarded equally fraudulent. (^) An unfair preference in a voluntary assignment may furnish the basis of an attachment,. (Stevens v. Helpman, 29 La. An. 634,) although a fair assign- ment for the benefit of creditors may be sustained as against an attachment, (TJiorington v. Gould, 59 Ala. 461.) § 540. As to the kind of title to concealed property which will justify attachment, the New York court has decided that the statutes mean any property in the defendant's possession to which he claims title, although his title may be imperfect, or clearly bad, as the design to defraud may be as clearly apparent in concealing embezzled property as in concealing property really belonging to the debtor. (a) § 541. The court in Tennessee seems to be quite liberal in construing af&davits for attachment. In one case where under the statute providing that "if a debtor or defendant in any suit or judgment is removing, or about to remove, him- self or his property beyond the limits of the state" an attachment may issue, it was alleged that a certain debtor was owner and master of a steam-boat, and that he was about to remove said steam-boat beyond the limits, [permanentlj', I suppose,] the court held: "The first objection to this attach- ment is that the affidavit designates a particular piece of (.^) Wilson V. Britton, li Abb. Pr. tliough a violation of the former. 34. Stanley v. Sutherland, 5-4 Ind. 340. (£)Gaslioire v. Apple, 14 Abb. Pr. A mere misappropriation of money, 65. A violation of the bankrupt which lawfulh" came into the hands law, by sellinij; propertj', is not nee- of a debtor, will not justify an at- essarily a ground of attachment tachment on the ground of having under a state law, because a sale fraudulently contracted a debt. Goss- may be valid under the latter, al- v. Com'rs, 3 Col. 46S. a)TreadweIl v. Lawler, 15 How. Pr. 9. ATTACHMENT. 523 property only as being about to be removed. We are in- clined to think this statement, if it stood alone, would not be sufficient. The affidavit ought to use the words of the stat- ute, or it should exclude the idea that other property might still be left by the defendant within the jurisdiction amply sufficient to satisfy the demand. But the affidavit, in effect, states that the defendant is about to remove himself, as well as his property. It states that Newcomb is owner and mas- ter of the steam-boat Belle of Nashville, and that he is about to remove said steam-boat beyond the limits of the state. The statement is equivalent to the assertion that he is about to remove himself. He is master, and if he removes his boat he also removes himself. His relation to the boat, as master, connects his own removal necessarily with the removal of the boat."(^) A fresh and vigorous implication, certainly. And in Georgia, likewise, it has been held thnt where a non-resident is removing his goods through a county, an attachment may be levied thereon, under the statute authorizing such issue, when one is "removing out of the county," on the ground that the law gives every non-resident, for the purposes of litigation, a locus in the county where he is found, and that the place for the return of the process is the test; and so, if one is going through and out of the county, he may fairly be said to be removing out of that county. (r) With all due deference, I may be permitted to say that this seems to me to strain a law about as far as it will go without breaking. § 542. As to corporations, an early case in New York held that they were not liable to the process of attachment, but the general, perhaps now the universal, doctrine is that they are liable (>/) as any other debtors. A corporation is domestic where its cliarter is granted, and foreign everywhere else; and if chartered in two or more states it is domestic in each.(<<) In Ohio a domestic corporation may be proceeded against in a county of the state where it lias no otticc or place (6)Runyan v. Morgan, 7 Hnmpl.. (d)See Dmke on Alt. ^ 7!), and 219. nole. (c)Johnson v. Lowry, 47 Ga. 5(52. (^ilbid, ? 80. 524 ATTACHMENT. of business, as a non-resident of such county. (/) And a non-resident lessee of a railroad liable to be sued, as was the company, is also liable to be proceeded against by attach- ment. ((/) A national bank is held to be a foreign corporation, even in the state where it is located, since it is incorj)orated by act of congress, and is, therefore, liable to attachment as a non- resident, (/t) Unsound doctrine, I think. And in New York, where this decision was made, it has latterly been decided that even where a national bank is located in another state, and has property within the state of New York, no attach- ment can issue against it until a final jurlgment has been rendered against it. llhorer Y.Nat. Bank, 14 Hun. 126; Cent. Nat. Bank v. Richland Nat. Bank, 52 How. Pr. 130. And so with an insurance company created by the laws of Great Britain and doing business in the United States. (i) Attachment is the only method of suing a foreign corjDora- tion; and so, where in Massachusetts an action was begun against a railroad company established in Michigan, and service was made on the treasurer of the coriDoration in Bos- ton, it was held not maintainable. (;) § 543. Property of an estate in the hands of an executor or administrator may be made liable to attachment in Georgia. (A;; But the general rule is, probably, that this cannot be done except where an executor or administrator has made himself personabl}^ liable; as, for example, if he has entered upon a leasehold held by his testator or intestate in his life-time, or received the rents or prohts thereof. (/) § 544. Sometimes the affidavit is regarded as jurisdictional ; at others, not. Wherever it is not jurisdictional it may be amended without ousting the jurisdiction, otherwise it is not amendable.* (/)Cliampioii Machine Co. v. (/.jlloUowa}' ». Chiles, 40 Ga. Huston, 24 O. St. 503. 34(3. (.9) Breed v. Mitchell, 48 Ga. 533. {l)Drake on Att. ^ 82; Bryant r. (7i)Cooke V. National Bank, 50 Fussell. 11 R. I. 286. Barb. 341. *ln Iowa " reasonable grounds of (OMyer v. Ins. Co. 40 Md. 590. belief" will justify an affidavit. (C:.- (j) Andrews v. R. K. 99 Mass. 534. rey v. Gunnison, 51 la. 204;) while ATTACHMENT. 525 § 545. As a matter of course a levy is essential to jurisdic- tion which is in rem, and embraces so much property as the original levy includes, and no more.(/«) § 546. An attachment may be authorized for a debt not yet due, on proper affidavit, where time only is wanting to fix an absolute indebtedness. [ii] § 547. In regard to the species of property liable to attach- ment, the general rule is that w^hatever is liable to execution is liable to attachment, and. rice rcma, whatever is exempt from execution is exempt from attachment ; but this is so completely statutory in the different states that I do not think any attempt to enumerate the classes of real and personal property which may be attaclied would be at all a j^rofit- able outlay of time and labor. Sometimes even equitable rights are attachable; as, for instance, an equitable title to land, where another than the debtor holds the legal title, has been held subject to the process. Tbe chief perplexities arise in garnishment proceedings, of which, in logical order, we will treat in the next chapter. in Illinois and some other states the iiey residini;,' in it, anil at a tlit;tance atHdavit must be positive. i'rom the parties to the inmsaotion, In Alahr.ma the affidavit must l)e can absolutely know that tlie debt is positive in its averments, and con- still due and unpaid, since payment form to the .statute, and if it is de- may have been made since the last fective it cannot be amended. Staii,- cummunieation with his client, so gers V. Washington, .'iti Ala. -22'), that it is proper to aver in llie afii- Shieldt). Dothard. .Of) Ala. 51t"). Hut davit Ihat the affiant "is informed a relaxation seems to be allowed and l)elieves, and therefore ntntes." when; a resident attorney makes th(; MiUhell v. I'itts, GI Ala. 222. artidavit in lieliall' of a non-resid(;n1 (///)('i.iinccti( tit i-. Caldwell. 1 V:>; San P^rancisco v. 1. Onw/uniudMediiessanalturA- IJrader, f.O Cal. ^W: lT:'.liniway w. ment may he baned. An official Davis, :!.■{ Cal. Hi 1. liond is an obligation for the direct In .\rkansas an attachment may payment (,f money in an action up- issue in aid of an c.juilable suit, as 526 ATTACHMENT. well as of a suit at law. American Land Co. v. Grady, 33 Ark. 550. In Iowa an attachment will lie against a tenant for rent. Daniels «. Logan, 47 la. 395; Rotsler v. Kotsler, 46 la. 189. But usually an ordinary attachment cannot he is- sued in such a case, altl^nmh a distress warrant may. which is somewhat in the nature of an at- tachment, or perhaps rather of a summary lien. Attachment lies for rent in Arkansas also, and may be specific or general, and he brought before the rent is due. Tignor v. Eradley, 32 Ark. 1^1. In Alabama this is .subject to ordi- nary defences. Dryer?;. Abercrom- bie, 57 Ala. 497. And by attachment mortgaged crops may be levied on in the possession of the mortgagee of the tenant, for rent due. Hud- son et al. V. Exec'rs, 57 Ala. GU9. An attachment is no remedy for the recovery of specific property. Gates «. Bennett, 33 Ark. 475. Also, one advancing money for raising a crop can enforce his claim by attacliDient, in a manner simi- lar to that available on the part of a landlord. Grady v. Hall, 59 Ala. 341. The crop lien, for advances, begins at the time of the advance. Carter f. Wilson, 61 Ala. 434. In Alabama any civil action, ■whether founded on contract or tort, as for an assault and battery, can be commenced b}' attachment under the statute. Hadley v. Bry- ers, 58 Ala. 139. 2. What kinds of property are liable. In addition to the statement of the general lulc in the text we remark: In Kansas it is held that the interest of the owner of lots in a town site on the lands of the United States is liable to attachment, not- withstanding the town site has not buen proved up by the probate judge in trust for the occupants, according to the law of congress. Fessler «. Haas, 19 Kan. 216. An otticer is not bound to levy on property, the title to which is in doubt: although, if he does so, he cannot voluntaril}' recall the levy without a liability to show sufficient cause for the release. Wadsworth V. Walliker, 51 la. G05. In California it is held that an officer seizing property in the hands of a third person, must be pre- pared to prove not only the attach- ment, but the proceedings on which it was based. Horn fi. Corvaru- bias, 51 Cal. 524. In a personal suit against a cap- tain or owners of a vessel it is held that an attachment of the vessel in aid may be issued, in Louisiana. Hacberle v. Barringer, 29 La. An. 410. An iillachment cannot he levied, in Alabama, on a landlord's lien for his debt, since it is not liable to execution, t^larnes v. Allen, 58 Ala. 317. And so, where equitable interests are not subject to execu- tion, they cannot be attached at law. Hillniau «. Werner, 9 Heisk. 586. And, accordingl}', it is held that an unassigned dower interest is not subject to attachment in an action at law. Rausch »>. Moore, 48 la. 611 ; Seevers, J., dissentinrj. And it is .so as to curtesy initiate. Greenwich Xat. Bank v. Hall, 11 K. I. 124. 3. As to parties. A count}' may be a plaintiP-", (State, use, etc., v. Fortinberry, 54 Miss. 316;) and a state, after making a demand of the debtor. State v. Morris, 50 la. 203. In Missouri, a receiver cannot bring attachment against the sure- ties on an official bond, their liabil- ity not being a "debt" within the mcaninn' of the statute allowing re- ATTACHMENT. 527 •ceivers to bring attachment suits. State ex rel. v. Ganibs, 68 Mo. 289. As to the rehition of a plaintiff in attachment to other lien creditors, such plaintiff, claiming a lien on a mortgage debt by reason of an at- tachment, is a necessary party de- fendant to a bill to foreclose such mortgage. Pine v. Shannon, 30 N. J. Eq. 501. 4. Notice. Where an attachment suit is commenced, tlie fact that afterwards a personal summons maj^ be served, and actually is served, -does not annul the attachment. Grubbs?). Cotter, 7 Bax. (Tenn.)432. And, where personal service is thus had, a dissolution of the attachment will not oust the jurisdiction of the '>l. It is also laid down tiial tlie property trusteed must be — with some few exceptions, as, for exam- ple, hides while tanning : Dnike on Attachment, § 4(i4 — such a-< could, after judgment against tin; dcrenil- ant, be turned over by the garnishee to be taken in execution; (ir, if a debt, must be such as Ihat tin; garnishee could, after judgment against tlie defendant, protect him- self by paying it, witiiout waiting to be sued, (H Dane, Al.ridgmcnt, 505 ; Drake on Attachment, * 4(i3 : Maine, etc., Ins. Co. «. Weeks, 7 Mass. 438;) and, as to the burden of proof, the garnishee stands in t he 530 GARNISHMENT. § 550. A singular claim arose in Louisiana, to this effect: In 1863 a transportation company sold to A. a steam-boat same sitiiiition as if the defendant IkuI sued him. Potter v. Stevens, 9 C'lish. ■'>:iO; eriticisin;; opinion of .P. Page, 10 IIei.sk. 443. 5. SnlnricH nnd wnrjes. It is gen- erally prf)vided that the sniaiies of 532 GARNISHMENT. wards lie sold her to a packet company within the lines of occupation for three thousand two hundred dollars, United inunicipal or public officers cannot be garnished, and sometimes this is extended by statute to the wages of empio3es of private persons or pri- vate corporations. Keyser v. Rice. 47 Md. 2U3. The general rule is that the sal- aries of officers in the hands of dis- bursing officers cannot be reached by garnishment. Pruitt v. Arm- strong, 56 Ala. 306. But in Kentucky, while the sal- ary of a state officer cannot be gar- nished, the salaries of municipal offi- cers may be, because a municipality ma}' be sued, Avhile a state cannot without special consent. Rodman V. Musselman, 12 Bush. 3,U. A debt due for wages is usually subject to garnishment, with the exemptions, however, provided by law. McKelvay v. R. R. Rich. 44(i. t). Estates. An administrator or executor cannot be garnished, usu- ally, for a debt due from a legatee or distributee, he being neither "at- torney, agent, factor, trustee, nor debtor," in the sense of a garni.sh- raeut statute. Conway v. Arming- ton, 11 R. I. 117. But in Maine it is held that the words "effects and credits,' in a statute, will justify the garnishment of a legacy in the hands of an exec- utor or administrator. Cummings V. Garvin, 65 Me. 301. In Massachusetts, it seems, a leg- ac}' may be garnished in the hands of an administrator or executor, provided the legatee is not in debt to the estate, in which case the debt thus due the estate has the preced- ence. Nickerson v. Chase, 122 Mass. 296. Rossibly a garnishment would generally lie, where there is a decree of distribution, and the funds are still in the admin istrators hands. In Rhode Island the creditor of a decedent cannot garnish one owing the estate, but must pursue the course marked out by the statute for the settlement of estates. Bryant V. Fussell, 11 R. I. 286. 7. Promissory notes, etc. In Mas- sachusetts, where a certain sum was due defendant under a contract pro- vidins: that payment should be made to him by the other party to the contract in negotiable promissory notes, of which the dates and amounts were fixed by the contract, but not the fimrs of payment : and the contract further provided that the interest should be paid on each note which should run beyond a certain (lay ; and at the service of the writ the time when the last note should liear date had expired. Iiut it did not appear that any of I be notes had become [)ayable, or tiiat any debt was due thereon to the defend- ant. — it was held that a garnishment would not lie against the otiier party to the contract. Fuller v. O-Brien, 121 Mass. 422. But positive promi^^sory notes are subject to garnishaient, although not .subject to attachment in the hands of the holder. Prout r. Grout, 72 111. 456. A bank check, given in ]jaympnt of a balance on accounting, is not suliject to garnishment in Massa- chusetts, the writ being served af- ter such payment l)y check, but before presentation at the bank. Getchell v. Chase, 124 Mass. 366. It is evident that a scttlemeuf, by which the prior imhibtedness is extinguished, Avhether by actual payment or a bank check, must so discharge a liability as to prevent GARNISHMENT. )6o States currency. After the war the former company owners attempted, by an indirect means of garnishment, to compel garnishment. Huntington v. Kis- (ion, 43 la. 517. A fialaiioe duo on suhscriptiini to the stock of a corporation can be ^garnished. Peterson v. Sinclair, 83 Fa. St. 250. And a creditor of the ■corporation may join two or more stocliliolders in the same writ, for unpaid subscriptions. Curry v. Woodward, 83 Pa. St. 371. 8. Mortgages. A s?cond nun-lga-gee cannot garnisli the first mortgag'^e iis tlie debtor of the mortgagor, for a surplus of rents and profits remain- ning in liis hands after the satisfac- tion of his debt. Toomer v. llau- ■dolph, GO Ala. 350. And so, where <\ mortgagee of chattels takes pos- session of the properly, he cannot Ije held for an}' e.xce.ss in value over the amount of his claim. Dieter v. Smith, 70 III. 16s. Where a savings bank held a note, secured by mortgage, and released u portion of the lands in consider- ^•ition of a certain amount of mone\' by the mortgagor, it was held the hank was not chargeable as trustee for the money .so received. Flagg V. Bates, 65 Me. 364. 9. Judgment debts. A judgment debt is held sul)ject to garnishment, at least on a writ issued from the same court which rendered the judgment. Calhoun v. Whittle, 56 Ala. 138. But where judgment in JioUdo is entered against joint de- fendants, one of them cannot be re- garded as a third person, so as to be subject to garnishment in the mat- ter, as to his co-debtors in the judg- ment. Bailey v. Lacey, 27 La. An. 30; Uichardson v. Lacey, Id. 62. In Georgia a count for mesne profits, in an action of ejectment, may be garnished, under a statute subjecting "suits pending" to gar- nishment process. Walkcs r. Zorii, 56 Ga. 35. 10. Future liabilities; and ront n- gcnt. It is held to be a rule that in a garnishment suit the garnishee stands in as favorable a situation as if he were sued by his own creditor; unless, indeed, there is a provision by statute that claims not yet due may be subject to garnishment. Where something remains to be done in order to fi.\ an indebted- ness, a writ of g;u'nishment will not lie. Curtis v. Alvord,45 Conn. 56ii. See, also, 87 111. 107. The validity of a writ must be settled by the state of facts existing at the time of serv- ice. O'Brien v. Collins, 124 Mass. 98; Hancock v. Colyer 99 Mass. Is7. And so, if there is a sum due to ilic principal defendant, yet if b}' a prior agreement it is to be appropriated to the payment of a specific debt, a garnishment writ nuisi be ineffect- ual; nor does it matter if, after tlu^ service of the writ, the specific debt is paid in another manner than tlu; manner cont(!mp!ated and agried ii|)(>n at llie lime of the sciAirc. O'lirien v. Collins, .v//y;;'((. It is not always necessar\', liowever, that there should be a specific agreement to pay money, if a legal obligation exists. .V singular case arose; in Missouri, thus: The lands ofa delit- (;r were sold successively by two of his creditors — by one under an exe- cution; l)y the other under a deed oT trust afterwards. The judgment creditor .sold for less than iiis claim; the other for more; than his claim. Hdd, that the surplus in tiir hands of the trust creditor (;ould be gar- nished in favor of the judirment creditor for the balance due him. Casebott «. Donaldson, 67 Mo. .309. But there must be an actually exist- 584 GARNISHMENT. A. to pa}' them the monej^ he had received for the boat, under the plea that as the hrst sale — the sale to him — was in contra- ing- debt. Osborne v. ^^cliult, IJ7 JVIo. Tl'J. As 1() cuntiugcnt cliiims, tliry are Tiot subject to garnisliment. But the question may arise whether a ])articular cl;iim is contingent or otherwise. Thus, earnings actu- ally made are not contingent merel}- because they are to be paid in the future, on the estimate and certificate of a third person. Ware V. Gowen, 6.') Me. 534. The debt must beabsoliitely due, but this may be so although the OHcerlic/iiii/eiif of the amount may be future. Maduel V. Mousseau.x, 29 La. An. 2-2s. But, where conditions are to be performed by a third person, the conditions mu-;t l)e fulMlled Iteforc the writ will lie. Williams V'. Young, 4(J la. 14(1. Wlun'e one makes a contract to build a house, and on its completion a definite sum will be owing, less any damages the own(!r ma_v be en- titled to, a plaintiff may, as the as- signee of the contractor, complete the building, and garnish tlie owner for the just amount. Zimuicr v. Davis, 35 Mich. 40. 11. Partncrsliips, etc. It is settled that an indebtedness due to a linn cannot be garnished in the hands of the debtor to pay the separate debt of one of the partners, (Myers r. Smith, 29 Ohio St. 120.) notwithstanding the tangible effects of a partnership may be attacJud for the debt of a partner. In such case the attaching creditor or other vendee only takes the place of the debtor in the eli'ects of the tirm, to be determined by a proper subsequent adjustment. People's Bank v. iShryock, 48 Md. 433; Winston?). Ewing, 1 Ala. 129 ; 8heedy «. Bank, 62 Mo. 18. This is the almost universal rule. See, also, to the same effect, Sweet v. Bead, 12 B. I. 121. And the rule applies to unsettled partnership ac- counts between the partners them- selves. Ives «. Vanscoj'^oe, 81 111. 120. But in Louisiana, while it is acknowledged to be the general rule that the property of wnc_/i;v/( cannot be made to an.swer to the del)t of another firm, yet it is held that the attachment of the interest of a non- resident in the property of a foreign commercial firm is allowable, as a matter of remedial justice, in favor of a citizen creditor. Tajior v. Kehler, 28 La. An. 530. But the interest itself must be within the jurisdiction, and especially lands in another state are not subject to gar- ni--hment in such manner. Bancker V. Harrington, .30 La. An. 136. But a garnishee ma}' be a non-resident^ and be proceeded against by attach- ment as such. Squair v. Shea, 26 Ohio St. 649. And where a statute allows a summons to be sent into another count)/, and there served on (me of two or more joi7it defendants, a garnishee maj' likewise be reached in another count}'. R. R. v. Rey- nolds, 72 111. 487. J 2. lluiihund and irife. Where a husljaud becomes his wife's debtor he may be garnished by her cred- itor. Odend'IIal »!. Devlin, 48 Md. 440. AVliere property passes to the Avife liyijift, of course neither .she niu' her vendee can be held as gar- nishee therefor l)y the husband's creditor. Hayward e. Clark, 50 Vt. 612. 13. Ats/gumcnts. An important question sometimes arises as to the rights of a creditor where an assign- ment has been made of property or claims conceining Avhich a gar- nishment is attempted. Where aARNISHMENT. 535 vention of the United States laws it was void, and therefore the money he held was theirs, the steam-boat being still propertj'^ is held by a valid assign- ment for the benetit.of creditors, it cannot be reached by garnishment for the debts of the assignor. Schlueter v. Raymond, 7 Neb. 281. Bui the utmost good faith must be observed in all assignments or transfers by one indebted. Fcarey V. Cummings, 41 Mich. 376. And this is held to apply even to the as- signment of a promissory note be- fore maturity. Clough v. Buck, 6 Neb. 343. And, especialh^ after service of the writ, a garnisliee parts with a promissory note at his peril, unless he is prepared to show that the note was not subject to the payment of the debt by reason of some pre-existing circumstance. Stevens v. Dillman, 86 111. 233. Where the facts of a transfer of a promissorj'' note are to be investi- gated in a garnishee process, the assignee is a necessary partJ^ Sim- mons V. Guyon, 57 Ala. 11. The fact that a note assigned to a cred- itor in pa3"ment of a debt is of great- er value than the debt, does not of itself make a case of bad faith as to other creditors. Nathan v. King, 51 Cal. 521. Where an assignment has been made so that there is a surplus so resulting to the assignor as that he could maintain an action for it, this may be subjected to garnishment, but not otherwise. Smith «. Millett, 11 K. 1. 535. If property in the hands of a trustee, or a debt owing l)y him, has been assigned, and he has notice of it before the service of the writ, he must disclose it, or he will be still lial)]e to the assignee, notwith- standing he is charged in the gar- nishee process. Larrabce v. Knight, 69 Me. 320. An assignment of a partnership for the benefit of its creditors will be protected from garnishment, if made in good faith. Bancker «. Harrington, 30 La. An. 136. in New Hampshire the assif/n- ment of wages, to be earned in the future, will be protected if in writ- ing. Thompson v. Smith, 57 N. H. 306. But whether the right can be protected further than the wages are actually earned at the time of the service of the writ seems to be uncertain. See Kane v. Clough, 36 Mich. 436. And, where wages are assigned as security for goods fur- "nished, it is held that if the as- signee, at the time a writ is served, is fully paid for the goods deliv- ered, and there is no particular time during which the arrange- ment is continued, any surplus of wages earned may be reached in the hands of the assignee by gar- nishment. Warren f!. Sullivan, 123 Mass. 285 ; see, also, Giles v. Ash, 123 3Iass. 353. Where one Avas employed by a firm on wages, and was to purchase of one of the partners a lot of ground, and did so, to be paid for by instalments of the wages due from the firm, it was held, the wages could not be reached by garnish- ment until after the lot should be paid for in the manner stipulated, or otherwise. Wait «. .Mann, 124 Ma.ss. 586. In Massachusetts an assigiunciit of wages is required to be in writ- ing. Onimet v. Sirois, 124 Mas.s. 162. ■ And a mere ctiiiitahle right in re- gard to assignments cannot, on the ordinary principle, be subjected to garnishnujiit. Bank«. IJiillock, 12l> iMass. 86. 14. Plfiintijf'aagdriiinhre. A plain- 536 GARNISHMENT. theirs, as the title could not pass by a void sale. But their plausible pretexts failed to reach the money. (6) § 551. If a party bona fide purchases goods from one sell- ing goods to defraud his creditors, but without any knowledge of the fraudulent intent, and pays for the goods by giving his tiff ciinnot properly make himself a garnishee, because a plaintiff and garnishee "are not only coiAem- plated as occupying adverse rela- tions, but the garnishee is regarded as representing the defendant, and is allowed to act for him, which would be repugnant to the first principles of jurisprudence, if he might himself be the plaintilf." Knight V. Clyde, 12 K. 1. 120. 15. Exemptions. The matter of exemptions may be regarded as partly juri.sdictional, at least, as well as a matter of pleading or practice. There may be a statutory exemption in favor of the garnishee himself; but it is held that a garnishee nuist likewise claim the benefit of exemp- tion laws for the principal debtor, and especiall}^ so in the case of a railroad corporation and an em- ploye. R. R. ». Ragland, 84 111. ;J75. It is held otherwise, however, in Missouri, on the ground that an exemption is merely a debtor's per- sonal privilege, which he can only exercise for himself. Osborne v. iSchutt, 07 Mo 712. In Maine it is iield that under a statute exempt- ing one month's labor a trustee must disclose the fact that the debt is for labor, or otherwise he will be liable to tbe principal debtor for that amount. Lock v. Johnson, 36 Me. 4G4. In Wisconsin the exemption of the debtor should be set up by the garnishee, (Winterfield v. R. R. 2!) Wis. 589 ;) as, for instance, money due a judgment debtor from a pnrcbaserof his homestead, which money tlie debtor intends to apply to the purchase of another home- stead, (Watkins c. Blatschinski, 40 Wis. 347 ;) or cases inaction exempt by statute. Probst v. Scott, 31 Ark. 652. 16. Resadjudicata. The ordinary rules of res ndjudicata apply to a garnishment proceeding, (Wilson V. Burney, S Xeb. 39 ;) and especially so, as it Avould be manifestly im- proper to subject a garnishee to a double liability, (Gas-light Co. v. Merrick, 01 Ala. 534,) on the proper disclosures being made and contest- ed on a full and fair trial of the is- sues, (Fearney «. Cummings, 41 Mich. 376.) and due payment made, (Dane v. Holmes, 41 Mich. 061 ;) un- less, indeed, the original attachment was void, (Greene «. Tripp, 11 R. I. 425,) or there was a fatal defect in the notice to the garnishee, as to w^ho was the original defendant, so that after service funds were paid to the original debtor by the gar- nishee under mistake of the fact. Terry f. Sisson, 125 Mass. 560. Garnishment in aid of an execu- tion can only be maintained when the execution is valid. Keutzler «. R. R. 47 Wis. 641. 17. Venue. A debtor cannot be required, as garnishee, to pay his debt to his creditor's creditor at a different time and place at whicli it could be recovered from him by his own creditor. Bank v. R. R. 45 Wis. 173. And a demand must be shown if the debt is payable on demand, and at the place designated. Ibid. (6)Tliompson -litDer v. Steinagel, 33 111. (/i)MillisoQ «. Fisk, 43 111. 113. .')H!, and cases cited. (^y)Bivens v. Harper, 59 111. 21. (OCiain ?). Gould, 46 111. 2!)."). (/>) Williams v. Jones, 38 Md. (iH)Wlute V. Bird, 20 La. An. r,-)o. 188. GAENISHMENT. 539 to restrain the collection of the judgment, pending the gar- nishment proceedings, (g) But in Massachusetts it is held that fees due a juror, and ordered to be paid to him out of the county treasury, cannot be intercepted, thus agreeing with the decisions in Illinois, but on a different ground, namely: that there is no privity of contract, express or implied, (r) § 555. In Massachusetts an agent is held not chargeable as trustee in a foreign attachment for wages due from his prin- cipal to the defendant; and, moreover, if he is erroneously charged, and pays the amount to the officer on execution, neither the payment, nor the ratification by the principal in allowing it to him on settlement, nor the fact that when the execution was levied the defendant himself told the officer that he might apply those wages towards satisfying the execu- tion, is a defence to an action brought in the defendant's name against the principal by an assignee whose transfer occurred before the agent paid the officer, of which transfer the agent had notice before paying, (s) And where one, as agent, collected rents for the trustee of another, and was thereon garnished as the debtor of the beneficiary, it was held that the rents were a trust fund in the hands of the trustee until paid over to the beneficiary, and the agent could not be held as the debtor of the bene- ficiary for rents thus received as the agent of the trustee. (^ One cannot, in Vermont, be charged as trustee, under the statute, as to trustee process on account of rhoscx in artion which he holds for, or in the right of, the principal debtor, even if he holds tbem in his own name,((() as this does not constitute him a debtor in the meaning of the statute. § 556. As to executors and administrators, the rule in New Hampshire is that "under the provisions of our statute, re- lating to the process of foreign attachment, an executor or administrator may l)e charged as the trustee of an heir or legatee for any sum of money fou).d to be in liis hands upon (r/)Keith «. Harris, 9 Kan. 38s. (.sjCascy v. Davis, lUU >I';^-;- '-^; (,)WUliams V. Boardman, 9 Gray, (OMclivain.-^.LancasU.,- 4.iMu..)0. ...„ ' (,/)Fulier V. .Icwc-M, .57 Vt. 474. 540 GARNISHMENT. the settlement of the estate belonging to such heir or legatee. And where process is served upon the executor as trustee, before the settlement of the estate, or before it is rendered certain that there will be anything in the hands of the trustee belonging to the principal defendant, the action will ordina- rily be continued until the settlement of the estate, or until the liability of the trustee can be definitely settled and deter- mined, when he will disclose, and be charged or discharged according to the facts as they exist at the time of the judg- ment."(r) In California it is held that after the decree of distribution money in the hands of an administrator to be dis- tributed to an heir or devisee may be garnished. («•) In Mis- sissippi it is held not only that executors and administrators may be garnished for a del)t due their intestate or testator, but also that assets in the hands of others, which they are bound to pay over to the executor or administrator, may be reached by process of garnishment against the debtors of the testator or intestate. (a;) In Georgia the effects of an estate may be tied up by an advance garnishment process until it can be ascertained how affairs stand with regard to them.(?/) In North Carolina it has been held that the administrator of one summoned as garnishee, but dying before the return day, cannot be compelled to answer instead of the intestate. (^) § 557. As to partnerships, it is the general rule (with Pennsylvania, Maryland, and South Carolina dissenting) that partnership credits can in no case be garnished to pay the individual debt of one of the partners; (a) and not even after dissolution; and the reason given for it in Georgia is that "the copartnership property, after the dissolution of the partnership, is first liable to pay the partnership debts before it can be made liable for the debts of one of the individual partners. The copartnership propert}- is assets for the pay- ment of the copartnership debts as well after the dissolution as before. "(5) (r)Pa]mer v. Noyes, 45 N. H. 174. (2)State v. Morehead, 65 N. C. 683. . ((c)Xerac's Estate, 35 Ca!. 392. (rt)Drake on Att. U 569, 570, and (>)TIiraslier v. Buckingham, 40 cases cited. Miss. 67. (6)x\nderson v. Chenne}', 51 Ga. (2/)Sapp p. Adm'r, 41 Ga. 628. 373. GARNISHMENT. 541 § 558. In some states, as Massachusetts (c) and Vermont,(d:) a municipal corporation can be garnished; in others, as Illinois, (c) it cannot; in others still an exemption may be waived, (/)but it cannot properly be waived if the reasoning of the court in Illinois is to be taken as conclusive: "It must be decided as a question of pubUc policy. These municipal corporations are in the exercise of governmental powers to a very lar^e extent. They controlpecuniary interests of great magnitude, and vast numbers of human beings who are more dependent for the security of life and property on the munic- ipal than on either the state or federal government. To permit the great public duties of such corporation to be imperfectly performed, in order that individuals may the better collect their private debts, would be to pervert the great objects of its creation." The general rule, undoubtedly, is that municipal corporations are not subject to garnishment in regard to any kind of indebtedness. § 559. But of course the matter is entirely different as to private corporations, which may, doubtless, be held as in- dividuals are in similar circumstances. However, a railroad corporation, having an agreement with connecting lines, and in a monthly settlement paying accounts to the road immedi- ately adjoining, but including in the settlement tlie amount due the companies whose roads lie beyond, is held not liable as trustee in foreign attachment of that corporation for a sum so found due to it, and for which it is in turn liable, un- der the agreement, to the other companies. ((/) And, again, a railroad company cannot be garnished when, at the time of issuing and serving the writ, the property of which the cred- itor is in (piest has left for its destination and is en route con- signed to the debtor. (/i) And this is placed upon this ground in the cage where the decision was made: "Any other rule would make railway companies collecting agents of creditors, and that, too, at the risk of the (•onii)anics. They are com- (<)Williiiins V. Kenncy, 9S Mass. (^)Mcr\vin «. (;hiriii,'o, 45 111. i:{4. J43 " (/){;iapp «. Walker, 25 la. J15. (d)John8on v. Howard, 41 Vt. 122. (r/)C'liapin v. U. li. 16 Gray, 69. (/t)R. K. 1). (.'obi), 4H 111. 403. 542 GAKNISHMENT. moil carriers of all kinds of manufactured and agricultural products, having a lien upon the articles delivered for their freightage. They are obliged, under ordinary circumstances, to carry all that shall be delivered to them, and they dis- charge their duty by carrying and delivering according to the contract. It is not their business, nor is it their interest, to know to whom the various articles belong, nor should it be required of them that conflicting claims to the property en- trusted to them should be adjusted througli controversies, the burden, annoyance, and expense of which they must bear. When the property has left the county, and is in transit to a ■distant j)oint, though on the same line of railway, it would be unreasonable to subject the company to the costs, vexation, and trouble of such a process merely because it had received to be carried that which the law compelled it to receive and carry." Foreign corporations may be held liable to garnishment in a state where they own property', or where the cause of action as to them arose. (i) § .560. Money in the hands of a station agent of a railroad company, received from the sale of tickets and payment of freights, cannot be garnished in a suit against the com- pany. (,/) The grounds of this are (1) that whatever can be at- tached by the ordinaiy process is not subject to garnish- ment; (2,) that garnishment usually lies only where the holder of property is personally liable, so as to be a debtor to the defendant ; and (3) that in the contemplation of law money in the hands of an agent of a corporation is in the hands of the company itself, and the process is intended for cases where the goods are out of the personal possession of the defendant. And the New Hampshire court say: "The corporation, as such, has no personalit}'- except in the persons of its agents. It can only act by agents. B^^ them alone can it possess its property, and exercise its corporate functions. In doing this their acts and possession are its own — not constructively, as in the case of agents of persons, but actually. In this (*)Brauser v. Ins. Co. 21 Wis. ( /)Pettingill v. 11. U. :>! Y.v. 512; K. 11. »). Tyson, 48 Ga. 351. 371. GAKNISHMENT. 54:3 respect corporations differ from persons. In one, the act or possession of the agent is const ructlvelij that of his principal; in the other, it is actually so. There may be a limit to the application of this princijjle. A corporation may employ an agent who is not invested with its personality. A railroad company does employ a large number of such agents in car- rying on its business. Such agents, having the property of tho corporation in their possession, may be held as its trustees. But some of the agents of a corporation must, in this respect, be considered as the corporation, and they cannot be charged -as trustees for the reason that, quoad hoc, they are the same. It may not be easy to draw the line between these two classes of agents. But we cannot doubt that those who are appointed to exercise the corporate functions as its regular ■agents, in doing business for which the corporation was organ- ized, must be considered as identical with the corporation in such business. A railroad corporation sells passage tickets, and receives and delivers freight, by station agents ap^jointed for that purpose. It can do it in no other way. This is the very business for which such companies are incorporated. In doing this business the acts of such agents, and their j^osses- sion of the corporate property, must be considered as the acts and possession of the company; and they cannot be held as its trustees." The court again lay down a limitation thus, on the doc- trine herein advanced: "This principle, however, does not apply when the person having such possession does anything to prevent the goods from being attached as the property of the debtor; by concealing them, or refusing, on request, to expose them, or by asserting any claim to them himself, or in any other manner, he would then be liable to the trustee process."' Sweet v. Brown, 5 Pick. 17N; Hooper v. Ihn/, i;> Me. 5f). "Nor has this doctrine ever been applied to a depos- itory of money. Though coin and bank notes are now attach- able, and may be taken on execution, practically thc3' can very seldom 'become at to be attached,' and they dilTer from all other property in this respect; and there are cases in which one holding a particular fund merely on deposit, claim- 5 1:4 GARNISHMENT. ing 110 interest in it, may be chargeable as trustee. Bell v> Gilbert, 12 Met. 897; Im. Co. v. Holbrook, 4 Gray, 235." The owner of the fund can have no reason to complain, and any other rule would encourage fraud. On the 2:)rinciples alcove stated, the cashier of a bank, in which are deposited the funds of a corporation, cannot be- garnished in a suit against such corporation, although he is its treasurer, and, as such treasurer, deposited the funds in the bank ;(^) for, said the court quaintly, "A corporation could hardly be summoned as trustee of itself. But to charge ita officer, while holding its funds as such, would be to charge it as trustee of itself. It would be to determine that the trustee held the funds as an individual, and not as an officer, which is not the fact." And the court goes on to remark: "The supposed trustee, individually, has no goods, effects, or cred- its of the defendant corporation entrusted to or deposited with him. As its treasurer he holds the funds as an officer of the corporation. They are funds held by the corporation through its treasurer. It is the only mode by which a cor- poration can hold its funds. Such funds so held are noi^ goods, effects, or credits of the principal debtor, entrusted to or deposited with the supposed trustee, but are the funds of the corporation in its own custody, and in charge of its appro- IDriate officer." But it is held differently in Kansas, in regard to a foreign corporation, so that the treasurer of the corporation, having its assets in his hands, subject to the order and control of the directors, can be garnished. (/) § 561. Money deposited with a mercantile firm cannot, without any specific direction as to the application of it, ap- ply it to the payment of a note of the holder, indorsed to the firm for collection ; but the money so deposited is liable to garnishment, in an attachment suit against the depositor. (w) § 502. Where an attorney at law had. when a garnish- ment summons was served on him, a check drawn In' the de- fendant in the suit, to satisfy an execution in another action, (A-)Sprague v. Navigation Co. 52 {/) Wheat v. K. R. 4 Kan. 376. Me. 593. (m)Vance v. Geib, 27 Tex. 273. GARNISHMENT. 545 the check being not indorsed, and not presented for payment till after service, and on subsequent presentation paid, and the proceeds held when he answered to the summons, it was held lie was not liable as garnishee. (/i) 55 503. In a case where a husband traded a manufacturin'^ establishment, with the machinery, for a tract of land, and, to defraud his creditors, took the conveyance to his wife and subsequently sold the land, and for the payment took a note for a part of the price, payable to his wife, which she held until after it matured, and until the maker was garnished by a creditor of the firm of which the husband had been a mem- ber, in the manufacturing business, it was held that, as no rights of innocent assignees were involved, the note was sub- ject to the garnishment. (0) § 564. In states where municipal corporations are subject to garnishment, a summons may issue to make available the salary or wages of a policeman still unpaid, to satisfy a judg- ment against him,(p) but not wages to be earned by future services or not yet due. (5) § 565. An amount due from an employer to a contractor, who has so broken his contract as to give the employer a right to divert the payment to workmen under the contractor, is not subject to garnishment; as, for instance, where the contract in writing was that if the contractor failed to pay the workmen the employer might do so out of the contract money, and the contractor did so fail, it was held that, not- withstanding the service of the writ, the employer had a right to apply the contract money to the payment of the workmen for labor previously performed. (r) Where, however, the employer is liable under the garnishment, and a part of the amount due is for the individual services of the con- tractor, and a part for the profits resulting from labor hired by the contractor, so that the employer has the right of ap- propriating payments to either account, or in his default of making the appropriation, the employe may do so. and in ( /I) Hancock w.Colyer, 99Mass.lS7. (7)City of Newark v. Fimk, jr. <). (o)Palton V. Gates, 67 111. 105. St. 4(54. (;))Uit3' of Montgomery v. Van (r)Uoyle 0. Gray, 110 Muss. liOU. Dorn, 41 Ala. r,0->. V.l— 35 54:6 GARNISHMENT. default of both the law will appropriate, the attaching cred- itor succeeds to all the contractor's rights, and he may elect as to the appropriation, or leave it to the law, which will make it in a manner that will most benefit him.(.s) § 566. It is held that money held by one as a security or indemnity against danger of loss in becoming bail for another may be garnished. (?) § 567. Claims arising under an insurance policy are not subject to garnishment until adjustment, since, until then, they are unliquidated. (m) § 568. In Iowa it is held that a guest maybe garnished by a creditor, in an action against the innkeeper, unless the inn- keeper requires his guest to pay, or pledge payment, in ad- vance, when no indebtedness arises on which a garnishment can \ie.{v) § 569. A creditor of a fraudulent mortgagor may, in Iowa, instead of proceeding in equity to set aside the mortage, or levying upon the property and claiming the right to sell it, reach the i^roperty mortgaged by garnishing the mortgagee, (u-) But the rule is different in New Hampshire, and there the in- come of lands fraudulently conveyed cannot be charged when there is no attempt to avoid the conveyance, (a:) And, in Vermont, while it is not expressl}' decided, it seems clearly intimated, that a fraudulent grantee of real estate, who has sold the iDroperty, cannot be garnished for the avails in his hands. (^) In Wisconsin a debtor's fraudulent assignment of an inter- est in a contract may be treated by the creditor as a nullit}-, and parties may be garnished for his debt, who, by the terms of the assignment, would be indebted to the assignee. (^) Under a valid trust deed, wherefrom not enough has been realized to meet the full claims and demands of the trustees, these cannot be charged as to money in their hands proceed- ing from it, since as mortgagees they have a right to hold the (s)Smitli V. Brooke, 49 Pa. St. 147. (w)Brainard v. Van Kuran, 22 la. (<)Elhs V. Goodnow, 40 Vt. 240. 266. (w)McKean D.Turner, 45 N.H. 203. (j;)Hevwoodf).Brooks,47N".H.234. («) Caldwell v. Stewart, 30 la. 379. (^)Stevens v. Kirk, 37 Vt. 208. (2)Prentiss v. Danaher, 20 Wis. 311, GARNISHMENT. 547 security till their debt is paid, so that if the creditor claims that there is a surplus of property he must redeem it b}^ pay- ing the lien of the trustees.(a) § 570. A consignee of goods who has agreed to make advances thereon, to half the value or more, by promissory notes, and has been authorized, in case of danger of garnish- ment, in an action against the consignor to appoint another person as the consignor's agent, has been held not liable for the amount of notes given just before service to his own clerk, as agent of the consignor, on purpose to avoid being charged. (&) § 571. Where a spendthrift has been placed under guard- ianship it has been held that a garnishment lies as to effects in his guardian's hands, and a creditor is there- fore not confined to suit on the guardian's bond, on refusal to pay his claim, (c) § 572. Where a town is garnished, which is owing defend- ant for professional services, it is held that it cannot in the garnishment suit claim a set-off on account of taxes due it from defendant ; on the ground that a tax is neither an express nor implied contract, (f/) § 573. Where military bounties are voted by a municipal corporation they cannot, while in the hands of the municipal officers, be garnished, in New Hampshire. But, of course, after a bounty has been paid over to a third person, by the order of the volunteer, it is liable like any other funds, (c) § 574. One who is twice garnished for the same debt may obtain a stay of proceedings in the second action, on affi- davits, by motion ; but, if he neglects this remedy, equity will not interfere to save him from the consequences of bis neg- lect.(/) § 575. If, after service of process, a garnishee delivers prop- erty of the principal debtor to a receiver, afterwards appointed, in another action, to take charge of all the debtor's property — (a)McGregor e. Chase, 37 Vt. 230. (fZ).Iohnsou v. Howard, 41 Vt. 125. (6)Collins t). Smith, 12 Gray, 431. («)Mancliester v. Burns, 45 N. H. (c)Hicks V. Chapman, 10 Allen, 4S2; ]\Ior.sc «. Towns, Id. 1^5. 463. (/)Danaher«.rrentiss, 22Wis.311. 5 48 GARNISHMENT. as of a railroad corporation's property — he does so at bis peril, l)nt will have the right to show that the receiver was entitled to take the property as against the garnishment plaintiff. (^f) § 576. Where property is delivered by a garnishee to an officer, under execution, the owner may claim exemj)tions the same as if the property had been taken from him; and so a deposit in a bank may be held exempt, under a statute ex- empting one hundred dollars' worth of i3ro[)erty, specifically, suitable to condition in life,(}i) when the bank is summoned as garnishee. Under a statute which jjrovides "that any negotiable paper which shall be actually assigned, negotiated, and transferred to any bank before it becomes due, shall be exempt from gar- nishment," the meaning is held to be that the fact of such transfer has the effect to work an exemption of the ]3aper, and that herein it makes no difference whether previously process of garnishment had been served that would hold the debt if no such transfer had taken place, where the bank discounted the paper in good faith, in the ordinary course of business, and without notice of the garnishment, (i) But it is held that the United .States statute of 186G, pro- viding that no sum due, or to become due, to any pensioner shall be liable to attachment while in course of transmission to him, does not apply to a sum which, at the time the act took effect, had already been paid to a pensioner's agent at his request, so that the agent was liable to garnishment, (j) Where an employer is garnished he may, notwithstanding the service of the process, continue to j)ay the employe wages by instalments, so as to keep the payments each below the amount exempted by statute. (A:) And, even if a contract be terminated after a writ is served, and a new one entered into at the same salary, payable weekly or monthly in advance, but still keeping payments within the exempt amount, it will make no difference as to the liability. (Z) (.7)Crerar »;. R. R. 35 Wis. GS. (jjKfllosrg v. Waite, 12 Allen, (/i) Fanning v. Bank, 76 III. 53. 529. (^■)Hall V. Bowker, 44 Vt. 77. (^:) Davis v. Meredith, 48 Mo. 263. (ijHoffman «. Fitzwilliam, (unreported,) 8 Chi. L. N. No. 44. HABEAS COBFUS. 549 CHAPTER XIX. HABEAS CORPUS. i 577. Nature of the writ. 578. Power to issue it. 579. Inquiry iuto jurisdiction. 580. Imprisonment for obeying United States laws, etc. 581. Power of appellate court. 582. Sentence by de facto judge. 583. Fugitives from justice. 584. Wliethcr constitutionality of laws may be examined. 585. Proof as to legalit}' of detention. 586. Commitments for contempt. 587. Inquiry as to the nature and validity of process. 5s8. Unlawful enlistments of minors. 589. Custody of children. 590. Criminal cases where indictment is found — sentence. 591. Arrests on civil process. 592. Bail. 693. Joint indictments when only one is tried. 594. Inquiries as to the legality of a sentence. 595. Recognizance of appeal. 596. Lunacy. 597. Vacation — parties — appeals — jury. 598. Suspension of writ. § 577. This great writ of personal right has for its object the liberation of those who are imprisoned without sufdcient cause, and it is, therefore, in the nature of a writ of error to examine the legality of the commitment ; yet it does not issue as a matter of course on application, and, hence, if the defect or illegality does not appear on the face of the proceedings, an affidavit is necessary, setting forth the circumstances under which the person imprisoned is entitled to its bene- fits. («) One committed on a criminal charge is entitled to («)Keeler's Case, 1 Hemp. C. C. impyiaonmciit must be shown in or- 307. der to invoke the jurisdiction, and The general rule is that an illegal when this appears the writ will be 550 HABEAS CORPUS. the writ as a matter of right, unless he was committed or de- tained by virtue of the final judgment of a competent court, (6) when the court will not inquire into the sufficiency of the cause of commitment, (c) It is a privilege secured to every citizen by the national and state constitutions, which can only be susjjended or withheld when in cases of rebellion or inva- sion the public safety may require it.(r/) The power to pro- tect personal liberty is essential to the sovereignty which claims the allegiance of the citizen. (e) § 578. The power to issue the writ belongs essentially to courts alone, and cannot properly be delegated to a mere court commissioner.(/) And, as to the courts which may exercise the power, the true doctrine is that the state courts, in their sj)here, and the United States courts, in their sphere, have exclusive jurisdiction, and therefore the state courts have no authority to issue the writ in any ease where a pris- oner is detained under the authority of the United States. (f/) However, a United States court may issue a writ of habeas corpus where one has been arrested by state authority within waters contiguous to a United States navy yard, and neces- sary to float vessels there stationed, because such waters are a part of the navy yard, and are, therefore, within the exclusive jurisdiction of the United States. Tatem's Case, 1 Hugh, 588. But a state court or judge, duly authorized, may issue the granted, except upon the most suing the writ. O'Malia v. Went- weighty considerations to the con- worth, (Jo Md. 130. And the state- trary. Pierce's Case, 44 Wis. 411. nient of facts showing illegality in And on a legal process, holding a the imprisonment is imperatively prisoner, a writ of hahrafi corpus necessary in all cases. Allan's Case, raises only the question of jurisdic- 12 Nev. 87. And the discretion of tion. Eldred's Case ; Ford's Case, a court will not be interfered with 46 Wis. 530. And so the court is- unlessit has been manifestly abused, suing the writ cannot inquire Bentley v. Terry, 59 Ga. 555. whether an indictment, regular on (/*)People v. Mayer, 6 Barb. 362. its face, was ever found by the grand {c) Kearney's Case, 7 Wheat. 39. jury, (Twohig & Fitgerald's Case, (d)Collier's Case, 6 O. St. 55. 13 Nev. 302 ;) nor test the legality of (f)Booth"s Case, 3 Wis. 157. the grand jury. State v. Fender- (/)Buddington's Case, 29 Mich, son, 28 La. An. 82 ; State «. Thomp- 474. son, Id. 187. And a court will ((/jTarble's Case, 13 Wall. 397. exercise a sound discretion as to is- HABEAS CORPUS. 551 VfYit in any case where a party is imprisoned within its terri- torial limits, provided it does not appear, when the applica- tion is made, that the person imprisoned is in custody unde? the authority of the United States. (/i) § 579. The chief inquiry, under a writ of habeas corpus, is into the jurisdiction of the court which authorized the com- mitment. For instance, the courts of the United States have no authority in this way to inquire into the merits of a de- cision made by a committing magistrate, and to determine that he erred in his construction of the law or the evidence, but it will only inquire whether the prisoner stood charged, before the magistrate, with a criminal offence, subjecting him to imprisonment, and whether the magistrate had com- petent authority to inquire into and adjudge uj)on the charge. (i) And, in such proceedings, the United States courts are not governed by state laws on the subject of habeas corpus, but by the common law of England, as it stood when the national constitution was adopted, subject to alterations by acts of congress; and under that system a decision under one writ, refusing to discharge a prisoner, is no bar to the issuing of any number of other successive writs by any court of competent jurisdiction. And so, where one was arrested under an extradition treaty between the United States and Great Britain, and was committed under the arrest, a circuit court of the United States refused a discharge in a habeas cor* j^us proceeding, and it was held that this was no bar to the issuing of a writ, sub-equently, by a justice of the supreme court, to inquire into the legality of the detention, (j) I pre- sume, however, the rule would not work well the other way, so as to authorize a second writ, by an inferior court, when the superior has refused a discharge. Nor does it apply to a writ refused by a state court to one imprisoned under state authority, in which case a United States court or judge has no right to interfere at all. An inquiry into the jurisdiction is not barred by an actual (/;)Hill's Case, 5 Nev. 154; Bar- (-«')Van Aernam's Case, 3 Blatchf. rett's Case, 42 Barb. 479; Hopson's C. C. ICl. Case, 40 Barb. 35. (i)Kainc's Case, 3 Blatcli. C. C. 1. 552 HABEAS CORPUS. conviction and partial execution of a sentence for felony; but the writ cannot reach the cell of a state prison, and annul a sentence, pronounced by a court without jurisdiction. (/c) § 580. If an officer of the United States is imprisoned by state authority, for executing a process of the United States courts, these courts have the power to release the officer on habeas corjous.il) § 581. It is held that an appellate court cannot inflict a higher penalty for an offence than the court appealed from could have imposed; so that, if the original court could only punish by fine or imprisonment, the appellate court cannot, in a case appealed, punish by fine and imprisonment, not- withstanding its own original jurisdiction is not transcended by such sentence; And where such sentence is passed, and the fine is paid, a still higher court may discharge the pris- oner, although a writ of error is the ordinary remedy for an error in the lower or intermediate court. So held in Massachu- setts, (m) But it is quite doubtful whether such a transcending of jurisdiction would justify a writ in most other states. In Ohio it has been decided expressly that errors or irregulari- ties occurring in the sentence of a court of competent juris- diction, cannot be corrected except on writ of error, unless the sentence is an absolute nullit3\(/<) And a habeas corpus is not a writ of error, nor can it be used to authorize the exer- cise of appellate jurisdiction. (o) (A) Miller ». Snj-der, 6 Ind. 1. ularities as make a judgment merely (ZjRubinson's Case, 6 McLean, C. voidable, but only such as render it C. 355 ; and so a private person im- void (McGill's Case, 6 Tex. Ct. prisoned for obeying an act of con- App. 498) for want of jurisdiction gress, (Bull'sCase, 4 Dill. 323.) See or other cause. Parks' Case, 93 U. an electoral college case, of the S. 18. Error is not to be inquired electoral college of South Carolina, into on habeas corpus proceedings. (1 Hugii, 570.) And see Engle's Granice's Case, 51 Cal. 375; Farn- Case, Id. 502. ham's Case, 3 Cal. 545 ; Bond's Case, (m)Feeley's Case, 12 Cush. 598. 9 S. C. SO. The object of a writ of (ftjSbaw's Case, 7 O. St. 81. haheas corpus is not intended to reg- ((/) Winston's Case, 9 Nev. 71. ulate the criminal "nusiness of an in- A writ of habeas corpus cannot be ferior court, (Larkin's Case, 11 Xev. allowed to have the force or effect 90;) nor to revise the proceedings of of an appeal, writ of error, or certio- even a court martial, (People ex rel. rari. It does not reach such irreg- v. Fullerton, 10 Hun. 63 ;) or for re- HABEAS COEPUS. 55.*! But, if a court passes sentence for a longer period than the law allows, the Missouri court holds that the sentence is void, and a habeas corpus will lie; but this is under a statute authorizing expressly a writ where jurisdiction has been merely exceeded. (p) In Alabama it has been held, but with considerable hesitation, and with the dissent of one of the judges, that habeas corpus will lie where a sentence has not been strictly pursued by the officer; as, for instance, where a prisoner, sentenced to perform hard labor for the county for a specified period, is, instead, imprisoned in the jail. Pear- sen s Case, 59 Ala. 655. § 582. Where sentence is passed b}^ a de facto judge, exer- cising the judicial office without any real right to do so, it cannot properly be examined on habeas corpus. [q) § 583. Where an alleged fugitive from justice is charged with crime, merely by affidavit, from which it evidently ap- pears that no crime has been committed, it seems that a court may properly interfere to discharge him by habeas cor- inis, notwithstanding the executive, upon whom the requisi- tion has been made, has granted a warrant upon which the refugee has been arrested ; provided no indictment has been, as yet, found in the demanding state, (r) This seems in part viewing any orders or judgments State ex rel. Fagin, 28 La. An. 837; of a court of competent jurisdirton, Darap «. Westeriage, 44 Tex. 388. (Semler's Case. 41 Wis. 518;) nor However, a pri.soner may in this can a writ be made to serve in the way assert the right to give bail, place of a plea in abatement or a even if it could be done by motion motion to quash, (O'Malia v. Went- in the court below. Walker's Case, worth, 65 Me. 130 ;) nor does it 3 Tex. Ct. App. (j(J9. matter how gross are the irregular- It is lield in Nevada that, where ities in a final judgment, they can- there has been a legal jeopardy, it is not be rectified by a writ of habeas equivalent to an aquittal, so that c./rpits, (Sam's Case, 51 Ala. 34;) nor the prisoner is entitled to his dis- does it matter what the consequence charge on motion; but habeas corpus is, even if it be imprisonment in will not lie in such a case. Max- the penitentiar}', (Schenck's Case, well's Case, 11 Nev. 428. 74 N. C. CU7;) nor will the court, (7j)Page's Case, 49 Mo. 292, 294. on habeas corpus, examine the de- ((7)Griffin's Case, 25 Tex. (Sup.) cis!onsof law made in the case, any 642; Call's Case, 2 Tex. Ct. of App. more than questions of fact. Fish- 497. er's Case. 6 Neb. 309. See, also, (r)Oreenough's Case, 31 Vt. 279 ; People ex rel. v. Phelps, 14 Ilun. 21; People «. Ueilley, 11 Ilun. 89. 654 HABEAS CORPUS. to be on the ground that while the courts have no power to control executive discretion in surrendering fugitives from justice, or to compel a surrender in such case, 3^et when the executive has acted, the discretion may be examined in every case where the liberty of the citizen is involved ; and, also,, while an affidavit need not set out a crime with all the legal exactness required in an indictment, yet it must distinctly charge an offence, (s) An executive, however, is not warranted in interfering with courts in the exercise of their dut}' under habeas corpus pro- ceedings. On this the supreme court of the United States remark, in a historical view of the matter: "The j)eople of this country could hardly be brought to allow an interference of the president with the judges in any degree. The experi- ment was made during Mr. Adams' administration, in 1799, and signally failed. Jonathan (or Nathan) Bobbins had been arrested as a fugitive, under the twenty-seventh article of Jay's treaty, for murder in the British fleet. He was imprisoned at Charleston, under a warrant of the district judge of South Caro- lina, and had been confined six months, when the secretary of state addressed a letter to the judge, mentioning that applica- tion had been made by the British minister to the president for the delivery of Bobbins according to the treaty. The letter said: 'The president advises and requests you to deliver him up.' On this authority the prisoner was brought before the district court on habeas corpus, and his case fairly enough heard, to all appearance, from the accounts we now have of it, and the judge ordered the surrender in the following terms : 'I do tlierefore order and command the marshal, in whose cus- tody the prisoner now is, to deliver the body of the said Nathan Bobbins, alias Thomas Nash, to the British consul, or such person or persons as he shall appoint to receive him,' The prisoner was accordingly delivered to a detachment of federal troops stationed there to aid in the surrender, and they delivered him to an officer of the British navy, who was (.f)Mancliester"s Case, 5 Cal. 237. the couitsof the surrendering state.. If It does so no formal defect in an Davis' Case, 122 Mass. 324, iudictmeut will be considered b}' HABEAS CORPUS. 555 ready to receive him on board of a vessel of war, in wliich he was carried away. That the judge acted by order of the presi- dent, and in aid of the executive department, was never dis- puted, and the then administration was defended on the ground that the treaty was a compact between nations, and might be executed by the president throughout, and must be thus executed by him until congress vested the courts or judges with power to act in the matter, which had not been done in that instance. 5 Pet. Ap. 19 ; 7 Am. Law Jour. 13. "The subject was brought to the notice of the house of rep- resentatives in congress by resolutions impeaching the pres- ident's conduct in Robbins' case, and where Mr. Marshall (afterwards chief justice of this court) made a speech in defence of the president's course, having much celebrity then and since for its ability and astuteness. But a great major- ity of the people of this country were opposed to the doctrine that the president could arrest, imprison, and surrender a fugitive, and thereby execute the treaty himself; and they were still more opposed to an assumption that he could order the courts of justice to execute his mandate, as this would destroy the independence of the judiciary in cases of extradition, and which example might be made a precedent for similar invasions in other cases ; and from that day to this the judi- cial power has acted in cases of extradition and all others independent of executive control. That the eventful history of Eobbins' case had a controlling influence on our distin- guished negotiator when the treaty of 18-1:2 was made, and especially on congress, when it jDassed the act of IS-iS, is, as I suppose, free from doubt. The assumption of the power to arrest, imprison, and extrude on executive warrants, and the employment of a judicial magistrate to act in obedience to the president's commands, where no independence existed or could exist, had most materially aided to overthrow the admin- istration of a distinguished revolutionary patriot, whose hon- nesty of purpose no fair-minded man at this day doubts. Public opinion had settled down to a firm resolve, long before the treaty of 1842 was made, that so dangerous an engine of oppression as secret proceedings bafore the executive, and the 556 HABEAS CORPUS. issuing of secret warrants of arrest founded on them, and long imprisonments inflicted under such warrants, and then an extradition without an unbiased hearing before an independ- ent judiciary, were highly dangerous to liberty, and ought never to be allowed in this country. Congress obviously pro- ceeded on this public opinion when the act of 1848 was passed, and therefore referred foreign powers to the judiciary, when seeking to obtain the warrant and secure the commit- ment of the fugitive, and which judicial proceeding was in- tended to be independent of executive control, and in advance of executive action on the case; and such has been the con- struction and consequent practice under the act of congress and treaty by our executive department, as we are informed, on application to that department. What aid the executive will afford to a foreign government through its prosecuting attorneys, in cases arising under treaties, rests witli itself, and not with us, as acts altogether independent of the judiciary. "(/) On the other hand, after a commitment of the accused for surrender, and even after a refusal to discharge him on habens corpus, the president may lawfully decline to surrender him, either on the ground that the case is not within the treaty, or the evidence is not sufficient to establish the charge of crim- inality. («t) Where the governor of Illinois had issued a warrant on a requisition from the governor of Missouri whereby Joseph Smith, the Mormon impostor, was to be delivered to the Mis- souri authorities for a crime which, as it turned out, was, if committed at all, committed in the state of Illinois, the United States circuit court released him on habeas corpus. (v) In Del- aware, however, it has been held that the courts are power- less to examine into facts and circumstances connected with the alleged offence after the governor's warrant has been issued. (?r) § 584, As to whether, on habeas corpus, the constitution- ality of a law under which the commitment took place can be examined, has been variantiy decided. The Texas court (0Kain'sCase,14How.(U. S.)lll. (/.ISiuitirs Case, 3 McLean, 121. (u)Stupp's Case, 12 Blatchf. 501. («c)State v. Sclilemn, 4 llaiT. 579. HABEAS CORPUS. 557 affirms the power, when it is necessary to the determination of the question of the legality of the commitment. u) But in Missouri the power is denied, and it is declared, even without the statute on which the decision is based, that the authority would be impolitic ; for, "admit this proceeding, and then every person charged with committing an offence of any kind or description whatsoever, instead of standing his trial and liti- gating the matter as the law directs, can come here and ask our advice as to the validity of the law under which he is arraigned. Such a precedent cannot be established, and the legislature clearly saw the impolicy of the proceeding, and placed a prohibition upon it."(y) § 585. On a return to a writ, after commitment and before indictment, additional proof may be received, in order to enable a judge to decide upon the legality of a detention. (^) § 586. On a liaheas corpus, in a case of commitment for contempt, only two questions can be examined, namely : Had the court jurisdiction to commit? and, Is the commitment in legal form? If these are answered in the affirmative, the court issuing the writ can go no further into an inquiry as to the propriety or justice thereof. (a) Thus, if it be claimed that the contempt consists merely of disobedience to an erroneous order, it will not be inquired of whether the order was erroneous or not.(h) (.I'jltodriguez's Case, 89 Tex. 748. signment, nor his testimony that (.y) Harris' Case, 47 Mo. 165. And he is utterly unable to pay any part so in New York. Donahue's Case, of the amount lie had collected for 52 How. Pr. 251. his client, and thus to comply with (,j)People V. Richardson, 4 Park. the rule, could be regarded on his Cr. 65G. application for release by habeas (a)Pcople V. Mit(;hell, 29 Barb. corpus. Smith «. McLenden, 59 Ga. (J22. 523. (6) Cohen's Case, 5 Cal. 494. But where a court ordered an ex- VVhere an attorney had failed to ecutor to pay a widow a definite comply with a rule requiring him to amount monthly, during the settle- pay over money to hisclient, and was mcnt of the estate, and on failing to imprisoned /w w/i.teTOy><, it was held comi)ly was imprisoned for con- that this was not on imprisonment tempt, lie was discharged on habeas lor debt, as prohibited by the con- rorpua, on the ground that the order stitution, and that the voluntary merely created a judgment (k'i)t, and bankruptcy of the attorney, and as- there was no contempt in the case, 558 HABEAS CORPUS. I § 587. Yet it has been held that the writ will justify an inquiry into the nature and validity of process, if any, by which the detention of a prisoner is sought to be justified; and, in Wisconsin, by whatsoever authority it may have been issued, even that of the United States — a very bold claim, but, in the present case, decidedly in the interests of right and political justice, (c) § 588. Habeas corpus is the proper writ to annul an unlaw- ful enlistment of minors into the army, whether citizens or foreigners, and at the instance of a master, or parent, or of the minor himself ;((/) also of a guardian. (e) But no one has a right to sue out a writ on behalf of a minor unless he has a right to the custody of the minor, or else appears by the request of the minor and in his Ijelialf, or in behalf of a guardian or other person having the legal right to the custody. Poole's Case, 2 McArthur, 583. and a probate court IkkI no power, more than any other court, to im- prison for debt. Leacli's Case, 51 Vt. 630. In Wisconsin, where, in a divorce case, a child was awarded to the father, and the mother abducted it and took it out of the jurisdiction, it was held that, as the father could not recover damages for the abduc- tion and detention, the mother could not, under the statute, be commit- ted as for a continuing contempt, although she might be proceeded against criminally; and, being so im- prisoned, she was entitled to a re- lease on habeas corpus. Louisa Pierce's Case, 44 Wis. 412. But if, in commitment for con- tempt, a court has regularly pur- sued its authority, having due juris- diction of the subject-matter, habeas corp}is^\\]\ not lie in the case. Phil- lips V. Welch, 12 Nev. 159. And so the regularity of a commitment for contempt, in refusing to pay ali- mony, will not be reviewed by ha- beas corpus, where the commitment is regular on its face. Bissell's Case, 40 Mich. (;3. AVhere one was attached for con- tempt in refusing to obey an order to pay over money to an admin- istrator, and appeared, and was dis- charged from the attachment, and yet was afterwards imprisoned for the same contempt, the commit- ment was held wholly void, so that a writ of habeas corpus would lie, (Brown's Case, 4 Col. 438,) for the principle of res adjudicata applies strictlj' in such cases. An}- dis- charge, whether on habeas curpus or not, must bar a re-arrest on the same matter, (Jilz's Case, 64 Mo. 205;) as also a refusal to discharge may prevent the issuance of another writ of habeas corpus in the case, except on subsequently occurring events. Pattison'sCase,56Miss. 161. (c)Booth's Case, 3 Wis. 2. ((?)Commonw. v. II;irrison, 11 3Iass. 63; Commonw. v. Cusliing, Id. 67; McDonald's Case, 1 Low. Dec. 100 (tf)Conimouw. e. Do\vnes,24 Pick. HABEAS CORPUS. 559 § 589. Habeas corpus also lies to recover the custody of a child. If the petitioner, however, left the child in the cus- tody of the respondent, a demand and refusal are indispensa- ble to the jurisdiction of the case.(/) Whether a writ of habeas corpus will issue from the supreme court to a person within the state to bring into the state a minor child, under guardianship therein, but detained in another state, is doubtful; as in Michigan, where the question arose, the court was equally divided on it, thereby rendering no decision, (f/) In a case of children the court can only determine the single question, whether they are unlawfully restrained of liberty, and order accordingly; but not questions of guardian- ship, appointment of trustees, disposition of property, making provision for the children's support, etG.(h) Where a guardian makes application for the custody of his ward he must make his letters of guardianship a part of his petition, (t) In Alabama it is held that, on habeas corpus sued out by the mother, a probate court cannot take an infant from the custody of the father and give it to her, when no improper restraint of the child is shown. (j) And, in its discretion, the court may award an infant to the father, even where the child is of an age to choose. (/c) And it is the general doctrine that the father's right to the custody of his children is paramount to that of the mother, although he may by misconduct forfeit that right, or lose it by disqualification, and also it may be suspended by the child's tender age. But a strong case must exist to warrant a de- privation of the father's right, even for a short time ; and, especially where the wife has separated from her husband (/)Spper V. Davis. 38 Ind. 272. dependent, is entitled to tiie custody (i7).Ia(;iiRon'.s Case, ir> Mich. 417. of a thirteen-year-old son, even (/i)Fergnson «. Ferguson, 36 Mo. when he prefers to stay with a kind 197. man, of good character and means, (/jGregg V. Wynn, 22 Ind. 373. to whose care the father had cou- (j/)Boaz's Case, 31 Ala. 425. signed the boy. Moore v. Christian, In Mississippi it is held that a 56 j\Iiss. 408. widowed mother, though poor and (/i;) Williams' Case, 11 Rich. 459. b60 HABEAS CORPUS. Tvithout any sufficient excuse, she ought not to have the cus- tody of a child unless the child's health and present condi- tio:! imperatively require it.(/) But, if the father be dead, the. mother is the most suitable person in general to have the custody of a child; yet in a contest between the surviv- ing mother and the grandparents, respecting such custody, it is held that the interest of the child should be the govern- ing motive of the court, and, whenever this is determined, judgment should be pronounced accordingly, irrespective of all other considerations. (;//) And if the father is living, but by reason of immoral or vicious habits he is unfit to have the custody and training of his child, the court will not only refuse to award it to him, but will also direct it to be taken from him and awarded to the mother ;(«) and sometimes, in rare cases, I have known a child to be taken from both parents and entrusted judi- ciously to a third person, where both were unfit to care for it; and, as against the mother of a bastard child, the putative father has no legal right to its custody. The mother, as the natural guardian, is bound for its maintenance, and is en- titled, therefore, to control it.(o) Where a wife has been compelled to leave her husband by his ill-usage and goes to live with her father, taking her child along, the court will not take the child from her when it is well cared for, and is not likely to be so by the father, since (/J People «. Humphreys, 24 Biirb. means of habeas corpus, although .')2i. he had repented breaking up the While, as a matter of abstract family, and the mother had refused law, the father, as head of the fam- his proposals to cohabit again, and ily atid bound to provide for them, declared the separation should be is entitled to the custody of the perpetual. While the children could children, yet the right dep'.'nds be consulted, if of the age of dis- somewhat on the circumstances of cretion, j'et, when very }'oung, the the case; and so, where a mother court must be guided by a consider- had been deserted by her husband, ation of their best interests, in view without means and among stran- of all the circumstances. McShan gers, and had found with her father v. McShan, 56 Miss. 413. a pleasant and permanent home, (rtt)People v. Wilcox, 22 Barb, where her two infant girls were well 178. cared for, it was held that the father (tj.) State «. Banks, 25 Ind. 495. could not claim the children by (o) People ?'. Kling, 6 Barb. 367. HABEAS CORPUS. 5G1 a court will always, in its discretion, provide for the interests of the child. (p) A child will usually be allowed to have an election where it is old enough. And it has been held that habeas corpus is not the proper mode for a guardian to obtain the custody of a ward under fourteen years of age, who chooses to remain with his mother, even if the guardian's right to the person of the child is perfect, and can be enforced against all oth- ers, (g) And where a female child, eleven or twelve years old, whose father was dead, was committed to the respondent, a Shaker, by her mother, on a verbal contract for her sup- port and education, and afterwards a guardian was appointed for the child, who claimed her custody, the court refused to determine the rights of the guardian and the mother, respect- ively, on habeas corpus, and instead thereof gave the child the choice to go with the respondent, to whom her mother had committed her, or with the guardian. (?•) And where a child had been bound as an apprentice in Canada, and the master had removed with her into the United States, the mother having married a second husband, the court refused to de- liver her to the mother, as she expressed her inclination to remain with the master. (s) Notwithstanding, the mother does not lose the right of custody after the death of the father, by a second marriage. Yet, as the court always has the discre- tion to determine, under all the circumstances, what is for the benefit of the ciiild, on the general principle that the proper office of a writ is to release from illegal restraint, wliere the party is of years of discretion nothing more is done than to discharge him; and, if otherwise, the court or judge must decide for him, and make an order to place him in the proper custody, when this has been judicially determined. (0 So, where a child was permitted by her parents to reside with others for a certain time, at the expiration of which these (j))Nickol8 V. Giles, 2 Root, 461. (.■<)Comiuonw. ©.Hamilton, 6 Mass. ((7)Stiite V. Chee.seman, 2 South, 273. (N.J.) 447. (^Armstrong v. Stone, 9 Gratt. (r)Comniouw. v. Hammond, 10 102; Kuat v. Vanvacter, 9 W. Va. Pick. 274. 6U0. v.l— 36 5(52 HABEAS CORPUS. sought to detain her, and she desired to remain, it was held that, while the wishes of the child should not be disregarded, yet the controlling consideration was the best interests of the child, with a due regard to the natural rights of the father. Shaw V. Nachtwey, 43 la. 653. However, a father may, by Toluntary contract, release his parental power over his child to another person. Bentley v. Terry, 59 Ga. 555. In mak- ing an election for the child its welfare is chiefly, if not exclusively, sought, so that parental rights are no further regarded than is for the child's good, and the court is to do what it supposes the child, were it capable of proper judg- ment, would do in the matter, although the discretion is not to be arbitrarily exercised, nor the rights of the parents dis- regarded, (it) The court will interfere so far, simply, as to permit them to go where they please when they can judge for themselves, and their wishes will lead them into no improper custody. And so, where the contest is between a father and a master, to whom he has bound them by valid indentures as apprentices, the court will award them to the master, if they wish to remain with him ; otherwise, if they desire to go with the father the court will so order, (y) An infant daughter was recovered on habeas corpus by a father from the custody of the respondent, although he had verbally committed her to him until she was of age, and the respondent had accordingly adopted her to be brought up as his own child. («') Where there was apparently an unjustifiable separation of husband and wife, and the father was not clearly shown to be unfit to have the custodj'of their child, on habeas corpus, brought by the father against the mother, its custody was awarded to him.(>) And in a case where a wife had voluntarily deserted her husband, and, returning to her father, withheld one of the children from him, with her father's countenance and consent, it was held that her father was a proper party to an action (u)Feop\Q V. Kling, 6 Barb. 368, (M)IState «. Baldwin, 1 Halst. 36ft. Chan. 4o4. {»)People V. Pillow, 1 Sand. 672. (2;)Commonw. c. Briggs, 16 Pick. 203 HABEAS CORPUS. 503 by habeas corpus, lie being a party to the wrong, and the prin- ciple herein being that, in respect to a civil injury, the law regards all who participate in it and promote it as principal wrong-doers, and severally responsible to the party injured in respect to his rights. (^) An action at law otherwise than liaheas corpus does not lie where a child is illegally restrained of its liberty ; but a father who would obtain due possession of his child must do so by means of this writ.(^) But the original jurisdiction of the supreme court of the United States does not extend to cases of this kind, (a) § 590. In criminal cases, where an indictment has been found, the examination cannot go behind the indictment, but on a commitment before indictment the whole question of guilt or innocence is held to be open for examination. (/>) In Iowa it has been held that the waicer of a preliminary exam- ination before a magistrate does not deprive an accused per- son of the right to show, in a haheas corpus proceeding, that there is not sufficient evidence to sustain the charge against him. Cowell v. Patteison, 46 la. 514. In California a person held to answer upon a criminal charge is entitled to be released, if not indicted by the grand jury at the term next after his commitment, unless good cause be shown for further detention. But this question of good cause is almost wholly subject to the discretion of the court ; so that the supreme court cannot examine the sufficiency or insufficiency of the cause on luiheas corpus. {c) A prisoner will not be discharged on a merely voidable sen- tence, but only on one absolutely void, and the test is usually that an illegality which renders a judgment in a criminal case void, is such an illegality as is contrary to the princi- ples of law, as distinguished from rules of procedure ;((/) as, for instance, where a sentence is so uncertain as to be unin- telligible, it is absolutely void.(c) In Missouri, however, no (2/)People V. Mercein, 5 Hill, 399. (6)People «. Martin, 1 Park. Cr.lS?. (z)Dowling V. Todd, 26 Mo. 267. (cjJ^uli's Case, 42 Cal. 197. (a)Barry's Case, 2 How. (U. b.) ((/)Gibson's Case, 31 Cal. 621, 65. ((;)ilobcrts' Case, 9 Nov. 44. \ 5G4 HABEAS CORPUS. one can be released on habeas corpna who is confined under an indictment. If the indictment is defective, or if it has not been tried in the time required by law, application for release must be made to the court where the matter is pending. (/) In no case, under a regular indictment, can a prisoner be released on habeas corpus by merely proving his innocence, but he must abide his trial by jui-y.(g) Nor can one in this way take advantage of an error in granting an order by which one is held in custody, (7<) for no writ of habeas corpus lies where an appeal can be taken, (i) and no mere errors, therefore, committed on a trial will be regarded on a hearing under habeas corpus. (j) However, by act of congress, the authority of judges of the United States courts to grant the writ extends to cases where a prisoner is in custody under a valid conviction and sentence, but claims his release on the ground of a pardon. (7j) And a habeas corpus is always available, even where a pris- oner is imprisoned under a sentence, to ascertain whether the sentence is void or not.{/) See § 594, lufra. § 591. It is not needful to justify a writ that the proceed- ings should be criminal, but in arrest under civil process the legality of the imprisonment may be thus inquired into.(?7«) And yet there seems to be an exception to this in the case of (/)Spracllend's Case, 3S Mo. 547. (w)Gilliam v. McJiinkin, 2 S. C. And still less can a prisoner claim a (N. S.) 443. discharge on the ground of not hav- As, for example, where n pardoned ing had a speedy trial, when he has convict is imprisoned for costs, ad- not been refused a trial on his de- judged against him, (Gregor3''s Case, mand for it. Hernandez «. Btate, 4 5(j Mi.ss. 164;) or one in jail, under Tex. Ct. App. 421.1. ra. aa. issued on a, judr/mfintfouiided (,9) People V. McLeod, 1 Hill, on contract, maj' be discharged on 392. habeas corpus, (David v. Blundell, (AjHartmin's Case, 44 Cal. 33. 39 N". J. 612;) or one arrested in (^■)Platt ». Harrison, 6 Clarke, 79. breach of primlege. Thus, in ^lassa- (7)0'Connor's Case, 6 Wis. 288; chusetts, where a non-resident came Max's Case, 44 Cal. 579; Eaton's into the state voluntaril}-, to appear Case, 27 Mich. 1 ; Winston's Case, before a legislative committee as a 9 Nev. 75, and cases cited. witness to testify to a claim he held (^)Greathouse's Case, 2 Abb. (U. against the state, and was arrested S.) 383. on a civil execution, he was released (?)People V. Ileffernan, 38 How. on habeas corpus. Thomson's Case, Pr. 404. 122 Mass. 428. 1 HABEAS CORPUS. 5(55 a bankrupt arrested on an execution in an action for deceit, since it has been held that he is not entitled to the writ on the ground that the action is founded on fraud ;(n) and also that a debtor arrested on civil process, at the time his petition in bankruptcy is filed, cannot thereon be released by habeas cor pus. (o) § 592. Where one is committed to jail merely for want of bail, but can be admitted to bail by an inferior court, a superior court will not issue a writ of habeas corpus.{p) § 593. That the wife alone was arrested, tried, and con- victed on a complaint charging her and her husband jointly with selling intoxicating liquors in violation of law, and on a warrant issued against both, is not sufiicient ground to release her from commitment on a writ.(g') § 594. If it appear that sentence was passed by a court of competent jurisdiction, the only inquiry on a writ that will then remain is whetlier the sentence is, on its face, certain and definite in its terms. (7*) It is not necessary that the record or the commitment should state the grounds on which the charge was made, and the court, on a writ, will not inquire into those grounds. (s) § 595. In Ehode Island it is held that, where a justice of the peace committed one convicted before him of illegally selling liquors, who had prayed for an appeal, but refused to give the proper recognizance of appeal, "until discharged by due order of law the court will not, on habeas corpus, discharge him, but will consider itself bound to dispose of him "as law and justice shall require;" and, therefore, when the term of the appellate court is still future, will correct the error of the justice by recommitting him, by a proper form of commit- (n.)Whitt'liouse's Case, 1 Lowell, such release, this is a fact to be in- (U. S.) 421). quired of. Alsberg's Caso, I'link. («)Minon v. Vau Nostrand, Id. Reg. 116. 4i3'J. (p)Belgard v. Morse, 2 Graj-, A United States court will not 40G. release b\' habeas corpus a bankrupt ((7)Dougherty's Case, 1 Williams, imprisoned for debt under a state (Vt.) 32!'). law, if tlie debt is one which will (/')Murray's Case, 43 Cal. 4')5. not l)e affected by the bankruptcy (.v)Fcuple v. Gray, 4 Park. Cr. ilischarge; and, on application for 616. 566 HABEAS COEPUS. ment, so that he may gain his liberty, on the statute con- ditions as to recognizance of appeal, (f) § 596. A person who has been conlined as a lunatic, with- out a finding of lunacy in due form of law, will be released on habeas corpus, unless, in extreme cases, where the public peace or morals, or the interest of the patient, justifies and requires the confinement — even in a hospital. (u) § 597. Usually, a writ may be allowed and heard in vaca- tion, as well as in term time.(r) A writ may issue from a court and be made returnable before a single judge thereof in vacation. People ex rel. v. Booker, 51 Cal. 317. And the officer who has made arrest under process is a proper party to the proceedings. (»■) And an appeal may lie, also, in vaca- tion, and without filing a bond.(H-) Unless provided by stat- ute, expressly, the state has no appeal in criminal cases, and, consequently, none from an order rendered in a criminal case^ on habeas corpus. In Alabama an appeal does not lie from an order on the hearing of a writ of Jiabeas corpus for the cus- tody of a child. Matthews v. Hobbs, 51 Ala. 210. In Texas a prisoner cannot appeal from an order dismissing his peti- tion, Coopivood's Case, 44 Tex. 467, In Missouri, and in most of the states, a discharge, being in favor of personal lib- erty, is not subject to appeal. Jilz's Case, 64 Mo. 205. And the parties are not entitled to a jury, this not being a civil action within the meaning of the bill of rights. (.r) § 508. It is a constitutional right to suspend the writ, when the public safety requires it, in cases of rebellion or invasion. The exercise of it during our late civil war gave rise to much bitter feeling and strife, and of course the measure, being an extreme one, should be very cautiously adopted, although it should be vigorously enforced whenever, in the discretion of the executive and legislative departments, no doubt exists as to the crisis imposing the necessity, within the meaning of the constitution. And the duty never devolves on subordinates. And so, where an order was issued in 1862 from the war (^Sullivan's Case, 5 U. I. 27. (?!)Bootli's Case, 3 Wis. 1. (M)Cominonw. v. Kii-kbiidge, 2 (?c)Nicliols«.Cornelius,7Ind. 611. Brewst. 401, 420. (;c)Baker v. Gordon, 23 Ind. 205. HABEAS CORPUS. 567 department, professedly "by direction of the United States," directing all marshals and military officers and police author- ities to arrest persons discouraging enlistments and assum- ing to suspend the writ of habeas corpus in relation to all per- sons arrested for disloyal practices, even within loyal states, whereas neither the president nor congress had as yet declared that the public safety required the writ to be suspended within the limits of loyal states, the order was held void by the United States circuit court, and the consequences of allowing such an unauthorized order to take effect are thus set forth by the court : "It will not be pretended that Vermont is not a loyal state. She has been and is among the first and most earnest to aid and sustain the government in putting down the causeless and atrocious rebellion which is now distracting and desolating our hitherto happy country. She has furnished more men to fight the battles of the Union than any other state of equal population, and thousands of the best and bravest of her sons now sleep the sleep of death in the swamps and on the battle fields of Virginia, Maryland, and Louisiana, The petitioner is a citizen not subject to military law, his age being over sixty, not only excusing but excluding him from military service, unless by that order every citizen is subjected to martial law. If that order is to receive the construction the marshal claims for it, then more than thirty thousand men in the states of New England and in New York — many of them of very limited intelligence and of low moral character — were authorized to arrest any citizen within these states, from the lowest to the highest, without complaint, without warrant, and without even informing their prisoner by whom, or of what, he was accused. This order assumes to authorize each of the officers or agents to determine who are guilty of disloyal practices — a phrase hitherto unknown, and, as yet, undefined in this country — and eacli to give his own construction to the term; and if any one of these in- quisitors pretends to think that a citizen has done or said anything which he chooses to consider disloyal, the jjoor unfortunate — though he may be the most worthy, loyal, and patriotic person in the community — may be thrown into 508 HABEAS CORPUS. prison and deprived of all opportunity of being heard before a court or a jury to establish his innocence, or of being con- fronted with the witnesses against him, or of even ascertain- ing the offence with which he is charged. Those who claim to exercise this extraordinary power may be governed by whim or caprice, personal ill-feeling, political or religious prejudice, the hope of pecuniary gain, or any other of the many unworthy motives which influence human action ; and yet all classes of citizens, from the day laborer in the field to the senator in the legislative halls of the country, are subject to this des- potic power : none is exempt. If one person argues that General McClellan is the most suitable person to command the array, and another insists that General McClellan ought to be removed and some other general appointed, both persons are liable to arrest, according to the peculiar views of the different agents who hear or are informed of the discussion, because each will say that such expression of opinion tends to discourage enlistments and is a disloyal practice. One argues that the Quakers ought to be subject to draft, while another insists that they ought not. Yet both are in the same danger. One claims that the principles and policy advocated by the New York Tribune for the prosecution of the war should be adopted and followed, while another denies it, and avers as his opinion that the policy indicated by the New York Herald should be pursued. Yet both are liable to arrest by a partisan of the other for discouraging enlistments. These illustrations might be extended ad infinitum.'" (y) In the celebrated Milligan case, the United States supreme court was divided five to four on the questions involved therein, as to the suspension of the writ in the state of In- diana, wherein the petitioner was convicted by a military court of belonging to, and taking a prominent part in, a for- midable secret conspiracy against the government. The majority of the court held, with the minority also, that "it is essential to the safety of every government that in a great crisisliKe theonewe havejust passed through there should be a power somewhere of suspending the writ of habeas corpus. (.VJFieWs Case, 5 Blatch. C. C. G7. HABEAS CORPUS. 569 In every war there are men of previously good character wicked enough to counsel their fellow citizens to resist the measures deemed necessary hy a good government to sustain its just authority and overthrow its enemies, and their influ- ence may lead to dangerous combinations. In the emergency of the times an immediate public investigation according to law may not be possible, and yet the peril to the country may be too imminent to suffer such persons to go at large. Unques- tionably there is, then, an exigency which demands that the government, if it should see fit, in the exercise of proper dis- cretion to make arrests, should not be required to j^roduce the persons arrested in answer to a writ of habeas corpus. The constitution goes no further. "(^) The purport of the decision is that a citizen of a state where the courts are not closed by war, although the state is within an assigned military district and the citizen is charged with secret plottings to overthrow the government, has a right to the writ of habeas corpus,- and the dangers of an opposite theory are thus set forth. The proposition is this : "That in a time of war the commander of an armed force (if in his opin- ion the exigencies of the country demand it, and of which he is to judge) has the power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his u-lU, and in the exercise of his lawful authority cannot be restrained except by his superior officer or the president of the United States. If this position is sound to the extent claimed, then, when war exists, foreign or domestic, and the country is sub- divided into military departments for mere convenience, the commander of one of them can, if he chooses, within his lim- its, with the approval of the executive, substitute military force for and to the exclusion of the laws, and punish all persons as he thinks riglit and proper, without fixed or cer- tain rules. * * * This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have humane and wise rulers, sincerely attached to the principles of the constitution. Wicked men , (2).Millig:urs Case, 4 Wall. 125. 570 HABEAS CORPUS. ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are fright- ful to contemplate. "(a) Chief Justice Chase, with Justices Swayne, "Wayne, and Miller, apprehensive that this decision tended to give aid and comfort to "fire in the rear" foes, responded in a separate dissenting opinion: "We think that the power of congress, in such times and such localities, to authorize trials for crimes against the security and safety of the national forces, may be derived from its constitutional authority to raise and sup- port armies, and to declare war, if not from its constitutional authority to provide for governing the national forces. We have no apprehension that this power, under an American system of government, in which all official authority is derived from the people, and exercised under direct responsibility to the people, is more likely to be abused than the power to regulate commerce, or the power to borrow money. And we are unwilling to give our assent, by silence, to expressions of opinion which seem to us calculated, though not intended, to cripple the constitutional powers of the government, and to augment the public dangers in times of invasion or rebell- ion. "(?0* (a) Id. 124, 125, passm. *See my late work, "Magna (b)ld. 142. Charta," for an examination of this subject. JURISDICTION OF MILITARY COURTS. 571 CHAPTER XX. JURISDICTION OF MILITARY COURTS. j 539. Jurisdiction, ordinary and extraordinary. 600. liesistance to drafts or enrollment — enticing away out of the state — enticing a minor into the army. 601. Desertion. 6)2. Officer whose commission is revoked — nature of courts martial. 603. Spies. 604. Mutiny and other offences. 605. Distinction of offences at law and under military rule — distinction between martial and military law, (in foot note.) § 599. Courts martial may be regarded as possessing an ordinary and extraordinary jurisdiction — the first exercised over soldiers alone ; the second exercised, even over civilians, when the usual courts of law are suspended by the pressure of war. We will consider the second branch first in order, since it is cognate to the topic with which the last chapter closed, namely, the suspension of the writ of liaheas corpus. In the Milligan case, cited in the last chapter, General B. F. Butler, for the United States, made a powerful argument, in which he maintained that it is not necessary for martial law to be justifiable that the courts should be closed for all pur- poses, but closed as to the peculiar questions arising in con. nection with the safety of the country. He said : "It is much insisted on that the determining question as to the exercise of martial law is whether the civil courts are in session. But civil courts were in session in this city (Washington) during the whole of the rebellion, and yet this city has been nearly the whole time under martial law. There was martial law in this city when, in 1804, the rebel chief, Jubal Early, was as- saulting it, and when, it this court had been sitting here, it would have been disturbed by the enemies' cannon. Yet courts 572 JURISDICTION OF MILITARY COURTS. — ordinary courts — were in session. It does not follow, be- cause the ordinal'}' police machinery is in motion for the repres- sion of ordinary crimes, because the rights l)etween party and party are determined without the active interference of the mil- itary in cases where their safety and rights are not involved, that therefore martial law must have lost its power. This exercise of civil power is, however, wholly permissive, and is subordinated to the military power; and whether it is to be exercised or not is a matter within the discretion of the com- mander. That is laid down by Wellington, and the same thing is to be found in nearly every instance of the exercise of mar- tial law. Commanders of armies, in such exercise, have been glad, if by possibility they could do so, to have the courts carry on the ordinary operation of justice; but they rarely permit to them jurisdiction over crimes affecting the well- being of the army or the safety of the state. The determin- ing test is, in the phrase of the old law books, that ' the king's courts are open;" but the king's court — using that phrase for the highest court in the land — should not be open under the permission of martial law. In a constitutional government like ours the supreme court should sit within its own jurisdic- tion as one of the three great co-ordinate powers of the gov- ernment — supreme, untrammelled, uncontrolled, unawed, un- swayed — and its decrees should be executed by its own high fiat. The supreme court has no superior and therefore it is beneath the ofiiee of a judge of that court, inconsistent with the tribunal whose robes he wears, that he should sit in any district of country where martial law is the supreme law of the state, and where armed guards protect public tranquillity, where the bayonet has the place of the constable's baton, where the press is restrained by military power, and where a general order constitutes a statute. On the contrary, we sub- mit that all crimes and misdemeanors, of however high a character, which have occurred during the progress and as a part of the war, however great the criminals, either civil or military, should be tried upon the scene of the offence and within the theatre of operations; that justice should be meted out in such cases by military commissions, through the strong JURISDICTION OP MILITARY COURTS. 573 arm of the military law which the offenders have invoked, and to which they have appealed to settled their rights. We do not desire to exalt the martial above the civil law, or to substitute the necessarily despotic rule of the one for the mild and healthy restraints of the other. Far otherwise. We demand only that when the law is silent; when justice is over- thrown; when the life of the nation is threatened by foreign foes, that league and wait and watch without to unite with domestic foes within who had seized almost half the territory and more than half of the resources of the government at the beginning; when the capital is imperilled; when the traitor within plots to bring into its peaceful communities the braver rebel who fights without; when the judge is deposed; when the juries are dispersed; when the sheriff, the executive of&cer of the law, is powerless; when the bayonet is called in as the final arbiter ; when, on its armed forces, the government must rely for all it has of power, authority, and dignity; when the citizen has to look to the same source for every- thing he has of right in the present, or hope in the future, — then we ask that martial law may prevail, so that the civil law may again live, to the end that this may be a government of laws and not of men." But the supreme court held that although the petitioner belonged to a secret organization on the soil of Indiana, in part, and extending its ramifications throughout the north- western states, with the design of wresting the north-west from the Union, and annexing it to the Southern Confederacy, and boasting of having one hundred thousand armed men, sworn in a secret band, and actively working thus to dis- member the Union, the ordinary courts were comjjetent to cope with this formidable, undermining conspiracy ! ! Wherein was this different from the open operations of the rebel forces in the field, except that it was more dangerous in that it could more defiantly evade the power of the government, struggling with all its energies to maintain its existence ? It does seem to me that Mr. Butler's doctrine is the only reasonable doc- trine; or, at least, that the due authority of martial law is not 80 much a matter of mere locality as of judicial power; 574 JUEISDICTION OF MILITARY COURTS. and not only, therefore, where this is wholly oUjDerseded, but so far as it is superseded by overthrowing peace and safety to the government and to community, and is, therefore, pow- erless to arrest perilous evils immediately threatening to destroy or enervate the efforts of the government to subdue a terrible rebellion, martial law must prevt^iljOr else we are, in. such a case, helpless in the extreme. It would have been as impossible to try those one hundred thousand secret conspir- ators in Indiana and the north-west by the ordinary courts, as to try the whole army of the Southern Confederacy for treason. And even the court define the matter thus : "Mar- tial rule can never exist where the courts are open, and in the pro]3er and unobstructed exercise of their jurisdiction." Yes, unobstructed exercise; and, also, so far as that exercise is unobstructed. But how, then, with a secret and formidable conspiracy con- cerning which the exercise of jurisdiction is obstructed, nay, wholly powerless ? What, then ! must that conspiracy be al- lowed to ply its secret arts and accomplish its designs because it is shrewd enough to organize away from "the locality of actual war," even when there is no power whatever but the martial power that can touch it at all, and that, too, when it is directly and avowedly aiming to subvert the government ? And how tame does the reasoning of the majority of the court appear, when in the very midst of it they are compelled to pause and remark : "It is proper to say, although Milligan's trial and conviction by a military commission was illegal, yet, if guilty of the crimes imputed to him, and his guilt had been ascer- tained by an established court and an impartial jury, he deserved severe punishment. Open resistance to the meas- ures deemed necessary to subdue a great rebellion, by those who enjo}^ the protection of government and have not the excuse even of prejudice of section to plead in their favor, is wicked. But that resistance becomes an enormous crime when it assumes the form of a secret political organization, armed to oppose the laws, and seeks by stealthy means to introduce the enemies of the couritry into peaceful commu- nities, and there to light the torch of civil war and thus over- JUKISDICTION OF MILITARY COURTS. 575 throw the power of the United States. Conspiracies like these, at such a juncture, are extremely perilous, and those con- cerned in them are dangerous enemies to their country, and should receive the heaviest penalties of the law as an example te deter others from similar criminal conduct. It is said the severity of the laws caused them ; but congress was obliged to enact severe laws to meet the. crisis, and so our highest civil duty is to serve our country when in danger. The late war has proved that vigorous laws, when necessary, will be cheerfully obeyed by a patriotic people struggling to preserve the rich blessings of a free government." This case can never become a lasting precedent, partly be- cause the court was as nearly equally divided as it could be, and partly because the dissenting minority of the court has the reason of the case so completely on their side. Tlie true doctrine is precisely what they have stated it, namely : "Where peace exists the laws of jjeace must prevail. What we do maintain is that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of congress to determine in what states or districts such great and imminent public dan- ger exists as justifies the organization of military tribunals for the trial of crimes and offences against the discipline or security of the army, or against the public safety. In In- diana, for example, at the time of the arrest of Milligan and his co-conspirators, it is established by the papers in the record that the state was a military district; was the theater of military operations; had been actually invaded, and was constantly threatened with invasion. It appears, also, that a powerful secret organization, composed of citizens and others, existed within the state, under military organization, con- spiring against the draft, and plotting insurrection, the liber- ation of prisoners of war at various depots, the seizure of the state and national arsenals, armed co-operation with the €nemy, and war against the national government. We can- not doubt that in such a time of public danger congress had power under the constitution to provide for the organization of a military commission, and for trial by that commission of 570 JURISDICTION OF MILITARY COURTS. persons engaged in this conspiracy. The fact that the fed- eral courts were open was regarded by congress as a suffi- cient reason for not exercising the power, but that fact could not deprive congress of the right to exercise it. Those courts might be open and undisturbed in the execution of their func- tions, and yet wholly incompetent to avert threatened danger, or to punish with adequate promptitude and certainty the guilty conspirators. In Indiana the judges and officers of the courts were loyal to the government, but it might have been otherwise. In times of rebellion and civil war it may often happen, indeed, that judges and marshals will be in active sympathy with the rebels, and courts their most efficient allies. * * * There are, under the constitution, three kinds of military jurisdiction : one to be exercised both in peace and war; another to be exercised, in time of foreign war, without the boundaries of the United States; or, in time of rebellion and civil war, within states or districts occupied bjr rebels treated as belligerents ; and the tliird to be exercised, in time of invasion or insurrection, within the limits of the United States, or during the rebellion within the limits of states maintaining adhesion to the national government, when the public danger requires its exercise. The first of these may be called jurisdiction under military laic, and is found in acts of congress prescribing rules and articles of war, or other- wise providing for the government of the national forces. The second may be distinguished as military (jovc rnmcnt , supersed- ing, as far as may be deemed expedient, the ioc-al law, and exer- cised by the military commander, under the direction of the president, with the express or implied sanction of congress; while the third may be denominated martial law proper, and is called into action by congress, or temporarily, when the action of congress cannot be invited, and in the case of justifying orex- cusing peril, by the j^resident, in times of insurrection or inva- sion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights." § 600. Under the acts of congress resistance to an enroll- ment, or resistance to the enforcement of a draft, and espe* JURISDICTION OF MILITARY COURTS. 577 cially where the homicide of the enrolling or drafting officer or agent is involved in the resistance, is cognizable by the civil tribunals only. (a) Also, in Massachusetts, soliciting one to leave the state to enlist elsewhere; and the indictment is main- tainable even if the person solicited was unfit to be a sol- dier. (6) Also enticing away a minor into the army.(c) § 601. But desertion is within the cognizance of a court martial, and when a sentence is confirmed it is altogether beyond the jurisdiction or inquiry of any civil tribunal what- ever, provided the court kept within the limits of its jurisdic- tion.(iZ) § 602. An officer whose commission has been revoked has a right to demand a trial by a court martial as to the cause of his discharge. (e) Such a court, however, is always extempore, and has but a special as well as limited jurisdiction. It ia called into existence for sj^ecial and temporary purposes, and when those purposes are answered it dissolves and disappears. No general duty or authority as to the collection of fines im- posed is conferred upon the president of the court, who can exercise only such power as is given him specifically, and within the time prescribed. § 603. While a spy is triable only by a military court, yet, if peace transj)ires again before he is tried, he cannot be tried afterwards by any court, for the return of peace takes away such jurisdiction. (/) § 604. Mutiny and kindred offences, disrespect or disobe- dience to an officer, and insubordination of all kinds, are cog- nizable by military tribunals. And in regard to mutinous and seditious words the law is so strict that even if the words are directed against an order unwarranted by military law they are punishable ; and if it is a time of war they are punished capitally. An English authority remarks: "So (a)U. S. V. Scott, 3 Wall. 646; U. (d)Dyne3 v. Hoover, 20 How. (U. . S. V. Murpliy, Id. 6r)2. S.) 81. ((5»)Commonw. v. Jacobs, 9 Allen, (e)Goulfr3 Case, 5 It. I. r)98. 274. (/iMartin's Case, 45 Barb. 142. (c)Buudy «. Dodson, 28 Ind. Altbougb he may be delivered to a 295. civil court for trial, on a charge ol V. 1—37 arson, or other civil offence. Id. 578 JURISDICTION OF MILITARY COURTS. large is the scope of military law, even in ordinary and regu- lar military law in times of peace and in this country, that it has been held, and by a court of error, that a person under military law may be liable to be put upon his trial before a court martial for insubordinate conduct, or mutinous and seditious words, even directed against an order made without authority; and that, even although on that ground the person is acquitted, he has no legal remedy, because the seditious words or conduct would be probable ground for putting him upon his trial." § 605. "Under martial law those acts or offences which, under common laWj are only misdemeanors, and liable to the regular, deliberate legal procedure — as, for instance, se- ditious publications, tending to stir up sedition and rebellion — become, on account of that tendency, grievous and danger- ous offences, punishable, according to military usage, by death; because, although at common law, in time of peace, they are of no great mischief, the result being trivial, in times of danger and of universal insurrection they are the most formidable and fatal offences." However, there is a distinction, strictly speaking, between martial and military law. "The former depends largely upon the discretion of the chieftain who proclaims it ; the latter is as clearly defined as is any system of statute, common, or civil law. The former may apply both to soldiers and citi- zens ; the latter applies only to the army. In time of war all offences committed by soldiers are cognizable by courts and martial or military commissions. If the civil courts, in time ■of war, try and punish such offenders, it is. because they are permitted to do so as a matter of comity or expediency. In time of peace a soldier of the national army can be demanded b}', and surrendered to, the civil authorities, to be tried and punished by them, only when he is charged with an offence 'such as is punishable by the known laws of the land;' that is, by the laws of the United States, or of a state or territory. A city by-law or ordinance is not, in this sense, 'a known law of the land ;' but a soldier who, when off duty, violates it, may be arrested in the act and restrained by the civil authorities, JURISDICTION OF MILITARY COUETS. 579 but ma}^ not be tried and punished by them. It would be their duty to deliver him, on demand, to the military authori- ties, and the duty of the latter to enforce the law military against him. If the civil authorities refuse so to deliver up the soldier, the military authorities may take him by force; but if, instead of resorting to force, the military authorities apply to a federal court or judge, the prisoner must be dis- charged from the custody of the city authorities by the writ of ]i(il)eas corjitLs." Briglifs Case, 1 Utah T. 145. In time of war the authority of military trihunals may, in all things, be exclusive. Coleman v. Tennessee, 97 U. S. 509. However, it is held that the adjudications of military courts, under the reconstruction laws, are only decisive of the cases, and are not precedents. Taylor v. Murphy, 50 Tex. 291. 580 TAXATION. CHAPTEE XXI. TAXATION. f 606. Nature of the tax-taking power. 607. Compelling the levy of a tax. 608. Mandamus by the United States courts. 609. Compelling the extension of a tax. 610. Enforcing tax against delinquents. 611. Nature of proceedings against delinquents. 612. Right of court to make rules. 61.3. Who may apply for judgment. 614. Terms of court. 615. Personal judgments. 616. Injunction — when it will lie — general rule. 617. When courts will not grant injunction. 618. Where there is a remedy at law. 619. One who seeks equit)^ must do equity, 620. How far courts will grant relief. 621. Parties in a proceeding to enjoin. 622. Legal remedies available — actions against oflScers and municipal corporations — set-offs. 623. Protection of officers. 624. liecovering back taxes involuntarily paid. § 606. The legislative power of taxation, either as exer- cised directly by the legislative body itself, or as delegated to municipalities as portions of the body politic, does not ap- propriately fall within the province of this work except inci- dentally, our subject being the jurisdiction of courts, superior and inferior, and therefore embracing only judicial action in some mode of exercise. Judicial power in this matter is lim- ited; and, in Illinois, it is held that under a provision of the constitution that "the general assembly shall provide such revenue as may be needed, by levying a tax, by valuation, so that every person and corporation shall pay a tax in propor- tion to the value of his, her, or its property ; such value to be ascertained by some person or persons to be elected or ap- TAXATION. 5b 1 pointed in such manner as the general assembly shall direct, and not otherwise." The courts have no jurisdiction to re- lieve against excessive valuation ; but when a board of equal- ization, elected or appointed, in pursuance of such constitu- tional provision, have fixed a valuation, this is conclusive and final, and the courts cannot review the mode of reasoning, or the basis on which the valuation rests — fraud in the matter being alone cognizable. (a) However, in the absence of a constitutional provision thus withdrawing the matter of valuation wholly from judicial consideration, and lodging it within the province of legisla- tive discretion, exercised through a designated agency, assess- ors may be regarded as acting judicially, in a degree, so that their action may be properly regarded as within the compass of the present treatise. Thus, in New York, assess- ors are held to be quasi judicial officers, their assessments being in the nature of judgments, so that they are not subject to an action to review, modify, or reverse their proceedings, or to hold them to a personal liability when acting within their jurisdiction, (^) although, like other judges, they may, if they exceed their authority, and contravene the statute un- der which they act, be made responsible, in a civil action, to injured parties, (c) for they are subordinate officers, and must confine themselves to the legitimate use of their power, and they cannot acquire jurisdiction merely by determining that they have it. Thus, it is the province of the legislature alone to determine wliat property is taxable, or 7vho are taxable in- Jiabitants, and their decisions on such points are void.(d) But, with regard to particular persons, or particular property, they may be considered as acting judicially in deciding whether these fall within the legislative rule or not.(c) And so they act judicially in deciding upon the matter of exemp- tions in behalf of particular individuals; and may reject an (a)Insurance Co. v. Pollak, 75 111. (c)Clark «. Norton, 49 N. Y. 243. 2!)2. And so in Indiana. Rhodes v. (d)Nat. Bk. of Chemung v. El- Cushman, 45 Ind. 85 ; K. R. v. Mc- mira, 53 N. Y. 49. <)ueen, 49 Ind. (54. (e)Harhyte v. Shepherd, 35 JST. Y. (hjR. R. V. Nolan, 48 N. Y. 514. 238. 582 TAXATION. application for a reduction if it is not sustained by evidence satisfactory to them — unless, indeed, the exemption is specif- icallij pointed out by statute, in which case there is, of course, no room for discretion ;(/) but, for example, in deciding a matter of personal indebtedness, for exemption, they have plenary power to weigh the merits on the evidence. () In Nevada, the j^uUication of a delinquent list is directory only, so that an omission in this respect does not avail a delinquent in a tax suit.(c) "Where a law, however, requires it impera- tively, yet the omission of any particular tract from it cannot be allowed to vitiate the entire assessment, or release those whose property is included in the list.(c/) § 611. But, although notice cannot be dispensed with, yet the proceedings to collect delinquent taxes are of a summary character, as above stated, so that a trial by jury cannot be demanded, (f") as this might involve injurious dela3's. § 612. In such proceedings a court has a right, as in other cases, to make rules and orders to expedite results, and may, therefore, make a rule allowing a reasonable time to file ob- jections to the application for judgment, and may, on non- compliance therewith, refuse to consider any default. (^f) § 613. Where a constitution provides that, in all cases of (j')Stewart v. Palmer, 74 N. Y. ((!/)Soiiichk;i «. Lowe, 74 111. 274. 183. (r)State «. C. P. R. Co. 10 Nev. 7R. (.y)Ste:irns Co. v. Smith, 25 Minn. {d)C. & N. W. K. Co. v. People 131. exrcl. 83 111. 4(57. (^)Mille Lacs Co. v. Morrison, 22 (s)New Orleans r. Cas.sidy, 27 La. Minn. 178; Dunham v. Chicago, 55 An. 704; Koss v. Commissioners, 16 111. 358. Kan. 411. (a)People ex rel. v. Otis, 74 111. (/)Hess v. People ex rel. 84 111. 584. 247. 580 TAXATION. sale of real estate ror taxes, returns shall be made to a gen- eral officer, to be designated by the legislature, having author- ity to receive state and county taxes, and that there shall be no sale of such real estate for taxes but by said officer, upon the order or judgment of some court of record, such pro- vision prohibits a court from rendering judgment for the sale of real estate for taxes on the application of any other person than the officer so authorized to make the sale.(^) § 614, And it seems that, as to terms of court, a notice of application given by such officer does not need to designate the first day of the term at which such application will be made,(/i) § 615. In regard to the judgment, it is a general rule that there should be no personal jiuhfinent for taxes levied on real estate, but that the judgment should be against the property alone ; and this applies to special assessments for municipal improvements. (i) In regard to a tax levied on personal prop- erty — as, for instance, a steam-boat — a personal judgment may be obtained, even where the law provides for a seizure by the collecting officer, and a sale on notice. The California court say: "We can jDcrceive no foundation for the argument that this was intended to be the exclusive remedy. Instead of abridging the ordinary remedy by suit for the collection of the delinquent tax, it was clearly intended to afford a new^ summary, effectual, and additional method for collecting it, in order to prevent the owner from evading the payment of it by a removal of the property. If a tax has been duly as- sessed, the owner of the property becomes personally liable for it, and the remedy is not confined to a seizure and sale of it, nor to the enforcement of a lien upon it by action. "(j) The obligation creates a debt in the sense of the term when applied to a liability for the payment of money recoverable by the proper municipality. (^■) And the United States may (f/)nills V. Chicago, 60 111. 86. .'JO Cal. 115; People «. Seymour, 16 (A) Parks v. Miller, 48 111. 360. Cal. 332. (OSrassheim v. Jerman, 56 Mo. (/iDubuqne v. 11. R. 39 la. 61; 105; Carliii ». Cavender, 56Mo. 2S6. Dugan v. Mayor, 1 Gil. & .Johns. (j)City of Oakland v. Whipple, 49!); Mayor v. Uoward, 6 Har. &- TAXATION: 587 be a party plaintiff in the collection of a tax by action at law or suit in equity; and in such a case no set-off, however just, can be allowed. (Z) In Michigan the general rule is modified, so that no suit for j)ersonal property taxes can be maintained, except where the taxes have been returned unpaid, for want of property to levy on, as may be the case where the property is disposed of after the assessment, or where the assessment rests on a business or occupation. The court saj: "The tax roll is itself as complete and adequate as an execution on a judg- ment would be if there are goods and chattels within the treasurer's jurisdiction. It would be a foolish ceremony to sue for land taxes when the land itself can be sold to pay them. But where personal taxes are unpaid, the debtor may have property subject to execution not open to seizure and sale by the treasurer, and a suit in such case is proper and necessary to secure payment. The statutory provisions are based on plain policy, and preclude the idea of suit in any case not named. "(w) In that state, as also in others, real estate taxes may be collected by distress on goods and chat- tels. In case of suit there is no trial by jury, nor change of venue allowed, the proceeding being, as before remarked, summary, (w) § 616. We now take up the consideration of proceedings adverse to the assessment or collection of taxes. And first we will treat of injunction, as the prevalent mode of resist- ance; and then of other particulars, such as the responsi- bility of the officers, and the like. There will be no judicial interference, on the ground of mere irregularities, or even hardships; since imperfections are unavoidable in the almost infinite range of subjects to which the taxing system must necessarily apply. The United States, supreme court thus state the general rule of judicial inter- Johns. S'^S ; Gordon's I'A-'r «. Mayor, (/) United States v. Pacifie It. Co. r, Gil. 23] ; Pvvan v. Gallatin Co. 14 4 Dill. 71. 111. 78 ; Dnnlap ». (Jallatin Co. 15 (mjStale}' v. Columl)Us, 36 Mich. 111. 7; Mayor, etc. , v. McKec, 2 Yerg. 38. 1G7; Slate «. Poultuer, 16 Cal. TjH; (/t)Mi\ o. People ex rel. 86 111. Ins. Co. V. Portland, 12 B. Mon. 77. 312. 58S TAXATION. ference : "We do not propose to lay down, in these cases, any absolute limitation of the powers of a court of equity in restraining the collection of illegal taxes; but we may say that, in addition to illegality, hardship or irregularity, the case must be brought within some of the recognized founda- tions of equitable jurisdiction, and that mere errors or excess in valuation, or hardship, or injustice of the law, or any grievance which can be remedied by a suit at law either before or after the payment of taxes, will not justify a court of equity to interpose by injunction to stay collection of a tax. One of the reasons why a court should not thus interfere, as it would in any transactions between individuals, is that it has no power to apportion the tax, or to make a new assessment, or to direct another to be made by the proper ofJicers of the state. These officers, and the manner in which they shall exercise their functions, are wholly beyond the power of the court when so acting. The levy of taxes is not a judicial function. Its exercise, by the constitutions of all the states and by the theory of our English origin, is exclusively legis- lative. Heine v. The Levee Commissioners, 19 Wall. 660. A court of equity is, therefore, hampered in the exercise of its jurisdiction by the necessity of enjoining the tax com- plained of, in whole or in part, without any power of doing complete justice by making, or causing to be made, a new assessment on any principle it may decide to be the right one. In this manner it may, by enjoining the levy, enable the com- plainant to escape wholly the tax for the period of time com- plained of, though it be obvious that he ought to pay a tax if imposed in the proper manner. These reasons, and the weight of authority by which they are supported, must always incline the court to require a clear case for equitable relief before it will sustain an injunction against the collection of a tax which is part of the revenue of a state. Whether the same rigid rule should be applied to taxes levied by counties, towns, and cities, we need not here inquire: but there are both reason and authority for holding that the control of the courts, in the exercise of power over private property by these corporations, is more necessary, and is unaccompanied by TAXATION. 581) many of the evils that belong to it when affecting the revenue of the state, "(o) The particular point of inquiry, in this connection, is whether the "substantial justice" of the tax has been affected or not by an irregularity complained oi.{p) It is not the business of a court of equity to further any scheme for the mere evasion of a tax, even if such scheme is technically legal ; as, for example, where, for the purpose of evading the payment of a tax on money on deposit, which the state law required to l)e listed for taxation March 1st in each year, the depositor withdrew it from the bank February 28th, converted it into United States bonds, and deposited these to his general credit March 3d, a decree dismissing a bill in equity, which he lirought to restrain the collection of a tax levied thereon, was lield to be correct, notwithstanding such securities were exempt from taxation, since a court of equity will not employ its extraordinary powers to promote such a scheme, evidently intended to evade the party's proportionate share of the bur- den of taxation. (f^) Where one appeals to a court of equity he must rely upon some substantial equity, and cannot avail himself of naked irregularities, or the neglect of mere forms, to shield himself from a past liability. (r) § 617. A court of equity will not interfere by injunction to, restrain an entire tax, because, in determining the aggregate value, certain exempt property is included as a factor, not- (o)8tate Railroad Tax Cases, 92 U. JNIcGowaa, 59 Ga. 805 ; Du Page Co. S. 614; Hanuewinkle «. George- ». Jenks, 65 111. 277. town, 15 Wall. 548; Dowv. Chica- (j^)Mart v. Smith, 44 Wis. 214; go, 11 Wall. lOS; Tappan «. Bank, someliines tliis is expressly pn-vid- 1'.) Wall. 504; Weber v. Ronhard, ed by statute; Chiiiiquy «. People, 73 Pa. St. 373; Commonwealth «. 78 111. 572; Beers v. People, 83 111. Savings Bank, 5 Allen, 247; Allen 488; and no forced or unnatural V. Drew, 44 Vt. 174; Mooers v. construction will be placed on the Smedley, 6 Johns. Ch. 27; Me.sscrt Avords of a law in order to defeat «. Su|)ervisors, 50 Barb. 190; Dodd the ta.\iiig power ; Fi.sher «. People, t>. Hartford, 26 Conn. 239 ; Green v. 84 111. 491. Mimford, 5 R. I. 478 ; I'l'iiinegan v. {7)Mit(;hell «. Commissioners, 91 Fernandina, 15 Fla. 379 ; Burke «. U. S. 206; Ogden v. VVuliier, 59 Bpeer, 59 Ga. 353 ; Decker v. I nd. 460. (r)Jones v. Sumner, 27 Fnd. 511. 590 TAXATION. withstanding jurisdiction might be entertained to enjoin the collection of a tax wholly against exempt property — the error, in such a case, being considered a mere irregularity, (s) Nor will jurisdiction be taken merely to test whether a complain- ant is in fact liable to the tax asssesed or not.(f) Nor to de- cide whether a tax is technically levied for a corporate purpose or not.(H) Nor in order to decree the sale of land on which taxes are assessed, even in a suit for injunction brought by the owner. (f) Nor can an injunction be granted in an action at law ; as, for example, in a replevin suit.(?r) Nor can a tax paj'er enjoin the collection of a county tax on the ground that he had paid in former years into the county treasury taxes illegally assessed and collected. (x) Nor in order to revise a decision of the tax officers on the matter of an ex- €mption.(t/) Nor in order to prevent the sale of personal property, even the property of a railroad corporation; since this would be merely interfering to prevent a trespass. (^) Nor can one appeal to equity on the ground of an error which is harmless or beneficial to hiln. Thus, where one complained of the violation of a constitutional rule of uniformity, but it appeared that his taxes would have been more if the rule had been observed, his bill was dismissed. («) And so, if there is a defect in the proceedings, which, by the strict rules of law, would render them invalid, but the amount is in justice no more than the complainant ought to pay, equity will not re- lieve him.(/)) And an individual seeking relief, either on his own behalf, or on behalf of himself and others, must be able to show a personal grievance, distinct from those of the public at large, in order to give him a standing in court, (c) and he cannot be allowed to complain merely that other property, («)Huck V. K. R. 86 111. 360. (i^)Clintou School District's Ap- (r)Mutnal Loan, etc., t). McGowan, peal, .50 Pa. St. 315. 59 Ga. 811.. (2)C. & N. K. R. Co. v. Ft. How- (w)Taylor v. Thompson, 42 111. 9. ard, 21 Wis. 45. (wjWeber t). San Francisco, 1 Cal. («)Miltimore v. Supervisors, 15 45G. Wis. 9. (?o)Spencer «. Wheaton, 14 la. 38. (5)Dean e. Gleason, l(i Wis. 19; (.c)Fremont v. Mariposa Co. 11 and cases cited. Cal. 361. (<-)Miller v. Grandy, 13 lUcl. 541. TAXATION. 591 alike subject to taxation, has been omitted, in order to restrain taxes properly assessed upon Inm.(ti) Again, it has been held that a bill will not lie to restrain a misappropriation in the disbursement of a tax(e) raised for general purposes ;(/') although it is otherwise as to a special 2)urpose ; as, for instance, a donation to a railroad corporation without legislative authority, which may be enjoined at the instance of any tax payer, it seems. (^) Although it is a ground for the interference of equity to enjoin a sale of land for taxes that the tax is illegal and the sale will produce a cloud on the title of the owner, yet when it is manifest that the sale will be void on the face of the proceedings on which a purchaser must necessarily rely for a jJfima facie evidence of title, it is held that equity will not interfere, since a proceeding which appears on insjjection to be void cannot create a cloud, (/t) Equity will not enjoin a tax because it is levied by a de facto officer merely, although it may do so where the levy is made without any pretence of authority or color of office, to which the right of levying taxes is an incident. (i) § 618. If there is a complete and adequate remedy at law, ■equity will refuse to interfere — this being, as previously ex- plained, a fundamental principle of equity jurisdiction. Thus, where a board has been provided, wliose duty it is to hear objections, and who can be compelled by vtandamiis to exercise their discretion herein, an objector must resort to the board, and to the right to sue out a vuduIudius, before he can assert any equitable claims in the matter ;(j) and, indeed, the findings of such board are usually final, except in way of appeal. And the right of ahatinu taxes may be vested in a ■court, (k) and then will not be interfered with by equity. In Massachusetts the right to recover back illegal taxes is re- (rf)Muscatinc v. K. R. 1 Dill. .OliG. (r/)ITarnoy v. R. II. 32 Ind. 244. (e)Kilbouriie v. St. .lolin, 5!» N. V. (/t)liiu;knall «. Story, 36 Cal. 70. 11; ChnrcJi, Ch. .1. and KnpaUo, ,]., (?;)Mnnson v. Minor, 22 111. 595; dissenting; Truesdiill's Appeal, 58 Staekle o. Sil.sbce, 41 Mich. 615. Pa. St. 149. ( ;)P(!()plo v. Otsego Co. 51 N. Y. (/)Coinmissioiu'rs v. Brown, 28 4ltl. Ind. 128; Commissioners «. McCar- (ZijCoclicco Manuf'g Co. v. Slraf- ty, 27 Ind. 475. .ford, 51 K. 11. 455. 592 TAXATION. garded as an adequate remedy at law, so that the collection of taxes cannot at all be restrained in that state, (i) And so, formerly at least, in New York.(m) But in most of the states, as I judge, a bill in equity will lie to restrain the collection of an illegal tax,(/i) in the absence of an adequate remedy at law. Where such remedy exists it must he employed. Thus^ if one would restrain the sale of personal property seized for tax assessed on lands, he must show that the property pos. sesses a peculiar value, not capable of compensation in dam- ages, (o) A merely illegal and void assessment, sought to be enforced against personalty, presents no ground for equita- ble interference, where neither irreparable mischief nor a multiplicity of suits may be apprehended, (ju) Where the proper forum for correcting errors is provided by a revenue law, equity will not undertake the work of revision. (5) It will never interfere without imperative reasons. And where the complaint was that a large sum was irregularly and ille- gally, and without notice, added to the complainant's list, as money at interest, the bill was dismissed because he could rec- tify it at law.(r) When there is a remedy by appeal, or by final reference to officers appointed for the purpose, equity jurisdiction is thereby excluded. (.s) To justify it, also, ther& must be some act done in violation of a complainant's legal rights, or threatening him with irreparable injury. (/) If trespass will lie for the act, this prevents equitable interfer- ence, (m) Where a legal method of correction exists, a tax: payer cannot loiter until it is too late to avail himself of it> and then come into equity for relief ;(t') for equity will not aid one in default, (if?) But it is, of course, requisite that he (OLoud V. Charlestown, 99 Mass. (<7)Brooks v. Sbeltou, 47 Miss. 208; Brewer «. Springfield, 97 Muss. 243 154. (/-jAruoldo.Middletown.SO Conn. (m)Wilson v. The Mayor, 4 E. D. 401. Smith 675. (s)Stewart e. Maple, 70 Pa. St. (n)Zorger v. Rapids Tp. 36 la. 176. 221. ((Allenry v. Gregory, 29 Mich. 68 ; (/)Judd v. Fox Lake, 28 Wis. 583. Quiuuey v. Stockbridge, 33 Wis. (;/)McPike «. Pew, 48 Mo. 525. 505. (v)State V. Ins. Co. 19 La. An. (p)Mayor, etc. , v. Baldwin, 57 Ala. 474. 62. (MJHarrison v. Vines, 46 Tex. 15. TAXATION. 593 have due notice. (.:c) A bill must contain some peculiar ground of ('(]uitabl6 jurisdiction in tax matters as well as in others. (//) § (ill). The equitable maxim likewise prevails that he who seeks equity must do equity; that is to say, where a detiuite portion of a tax is legal, and the remainder illegal, the legal part must first be paid before equity will interfere as to the remainder. (5;) And so a bill for relief must give such facts as will enable a court to separate the legal from the illegal portion, and must offer to pay the part the complainant does not dispute ;(a) as, for example, if the complaint is that the authorities have charged more interest than the law allows on unpaid taxes, the legal rate must be tendered. (^) And thus as to any portion of the principal assessment, (c) And the principle extends to a proceeding instituted to set aside a tax sale of land, and enjoin the purchaser from attaining a tax deed, where there are irregularities which would avoid the deed, but do not enter into the groundwork of the assess- ment. (t?) And it is held, in Wisconsin, that where the court, in an action to avoid taxes, is of opinion that the tax is viti- ated by defects in the groundwork of the assessment, the court may stay proceedings until a re-assessment shall be made ; and may thereon require the plaintiff, as a condition of relief, to pay the just amount, to be ascertained by re-as- sessment. (e) A rather novel application of the general principle of doing equity occurred in an Indiana case. The stockholder of a defunct bank, on which taxes had been levied, replevied prop- erty which had been seized by the treasurer, and it was ad- judged that the property belonged to him, except an iron safe, which was the proj)erty of the bank. He gave a deliv- {x)]i. It. V. Russell, 8 Kan. .558. Mich, llti ; Conway v. Waverly Tp. (2/)Hoagland v. Delaware Tp. 17 15 Mich 262. N. J. Eq. 1U6 ; Price v. Kramer, 4 (i)8mith v. Auditor General, 20 Co\. 546; Woodward v. Ellsworth, Mich. 398; Iloseberry v. Huff, 27 Id. 580. Ind. 14. (2)(;ity of Lawrence v. Kiliam, 11 (cjCJonnors v. Detroit, 41 Mich. Kan. 409. 128. (rt)Pahner v. Napoleon Tp. 16 (d) Hart «. Smith, 44 Wis. 218. (e)PIumer v. Marathon Co. 46 Wis. 164. V.l— 38 504 TAXATION. ery bond for the safe, and brought suit for an injunction as to the whole of the property. It was held that, as he did not offer in his bill to return the safe, nor to pay its value to the treasurer on account of the taxes of the bank, he had no equitable standing in court. Said the court : "He has no standing in court to recover from the treasurer the property of the bank. He does not offer to do equity, and a court of equity will not lend him its aid to prevent the property of the bank from being subjected to the equitable lien for taxes. "(/') A bill, however, may designate speciall}^ the amount of the illegal taxes complained of; and, in such case, only this is before the court, and an offer to pay the undisputed portion ma}^ be thus rendered superfluous. (^) In Arkansas it is held that an excessive levy vitiates the whole tax, and a court cannot apportion on a bill to enjoin, and treat as valid so much as is not in excess of the author- ized rate.(/0 I think this is not the general rule, and. in Illinois, it has been held that where a bill is brought to enjoin the collection of a tax levied to pay county orders issued for military bounties, a part of which are unauthorized and a part warranted by law, the court should ascertain the pro- portion which is authorized, and reduce the levy accord- ingly, (i) This amounts to nothing more than restraining the tax so far as the illegality extends, and no further. However, it may be different where, as in the Arkansas case, the rate per cent, is beyond what the law allows to be levied. >j 620. We now consider positively what a court of equity will do, as we have been noticing negatively what such a court irill not do, in the way of restraining a tax. And, first, where municipal assessments are unconstitutional the^^ may be set aside, as also the sales of land under them;(;) and in order to ascertain the fact of unconstitutionality the court will look behind the printed statutes to the legislative records to see whether the forms of the constitution were observed in tlie (/)Ewin.i,r «.. Hiilzner, 24Ind. 410. (/OWortlien «. Bad^ett, 32 Aik. (//)C;i(MiK-nt V. Everett, 29 Mich. 406. 20. (i)Birscoe «. Allison, 43 111. 2'.'1. (./)McClane v. Newark, 31 N. J. Eq. 472. TAXATION. 595 passage of an act.(A-) Also, equity will interfere m cases of total illegality — that is, where a tax is assessed without any authority of law.(/) The general rule is that interference may be invoked where the property upon which a tax is levied is exempt, or where the tax is levied in a case not authorized hy law; or in the absence of all legal power de jure or de facto; or where the persons imposing a tax have no power under the hiw to levy such a tax.(»j) As to exemptions, the husi- hCHHof a national hank is an example. A tax levied on it will be enjoined because, as it is conducted under United States law, it is not subject to municipal taxation. (?0 And so as to the Htock of such a bank, wdietlier included in an aggregate of a tax payer's propertj^ or listed eo nomine. The reason given is that a state tax on the loans of the national govern- mtnt would be a restriction imposed on the constitutional power of the United States to borrow money; and if there were such a right it wx)uld be unlimited in its nature, and might be employed so as to defeat the entire povver of the ^'overnraent.(o) If a tax levy is inherenthj unjust orinequifaJile, it may be en- joined, in Wisconsin ; and a statute attemjjting to deprive a tax payer of the remedy by injunction, in a case where the taxes are inherently unjust or inequitable, it is held would be unconstitutional and void.(j9) Where a statute requires the assessment of lots belonging to different owners, separately, equity will interfere in a case where two lots, owned by dif- ferent persons, are valued together; and the plaintiff does not need to offer to pay any portion of the tax assessed on such valuation. (V/) It is a ground for relief that irreparable injury may result; but a tax on a husiiiess cannot be enjoined (/L)WorUicn v. Badt-ett, 32 Ark. Du Page Co. «. Jenks, 6") 111.277; and 4!Mi. see section 616, supra. (ODi-ake v. Phillips, 40 111. 388. («)Mac.onp. First Nat. Hk. 59 Ga. Inwa seems to be an exception, since 648. ii is the doctrine there that mere (<>)ljank of Comnierce v. New illegality will sutlice. liood v. York, 2 Black, 620. .Mitchell Co. .30 la. 446. (;))AYhittaker v. .Janesville, 33 (///jMuiLsen v. ."Miller, 60 111. 380; AVjs. 77. (q)lhid. 51H3 TAXATION. on the ground of possible inability of the parties to pay it, wiiereby it may work irreparable injury by breaking up their business — this being a mere incidental consequence that may occur under any tax.(r) In Connecticut, notwithstanding the general rule above stated, that equity will not interfere in a case of mere mis- appropriation of a tax, unless it be to a spechd illegal pur- pose, it is held that where money is misappropriated, even by a vote of the town in a town meeting, equit}' will interfere at the instance of a tax jjaj-er ; as, for example, where money is voted to aid the government in obtaining troops, in the way of paying military bounties. (-s-"^ Where a purpose, however, is in itself fraudulent, and even where the fraud is mani- fested merely by a grossly excessive valuation, a court may interpose,! I?) under the general rule of equity jurisdiction in matters of direct fraud. And so, if there is an arbitrary injustice done, by increasing an assessment on a tax payer without notice to him, and of which he has no knowledge until it is too late to take legal steps to correct it, he may have relief in equity ;(•) And so, in cases of oppression, the remedy by injunction lies ; as, for example, where an ordinance required return and payment to be made within an hour after the tax should accrue, and, in case of default, doul)led the tax, and directed execution to issue, and denounced a penalty for non-payment, the tyrants were held amenable to equity.(/r) In Wisconsin it has been held that a dcjicicncfj of valua- tion, made under a statute requiring taxes to be levied on a full valuation, is a ground of injunction, and is not obviated by the testimony of the assessor, that, had the property been (/■) Vounglilood V. Sexton, 32 ('<)(Meglioi-u «. Post k'waitt'. -l.'! ill. Mifl). 407. See section (516, aupra. 42w. (s)Webstev »'. Harwinton, 32 (»;)Insuranoe C'o. v. Pollalc. 7.') 111. Conn. 131. 292. (<)Pacific Hotel Co. ». Lieb, 83 ill. (/r)Gould v. Atlanta, .5;') Ga. G78. (i03. TAXATION. 5'.>7 thrown on the market on the day of the assessment, he believed it would not have brought more than the assessed values, so that from that stand-point he had assessed tiie l)roperty at its fall value. (j?) In Kansas it has l)een held that where the owner of a tract held it liable to assessment as a single tract of so many acres, and portions of it were assessed as town h)ts, he could enjoin the collection of the taxes on such assessment. (*/) In Missouri relief will be afforded in equity, where, through ignorance of law, partly caused by the action of a court, the time of redemption from a tax sale has expired. (^) As to interference in matters of tax levy upon personal property, the rule is that it will be denied. But there are some exceptional cases where the rule is departed from. Thus, in a case where a tax collector placed a tax Ji. fa. in a sherilf's hands, with instructions to satisfy it out of the first money that should come into his hands from the sale of the defendant's property under an execution he then held, and the sheriff sold defendant's property for more than enough to pay off the tax fi. fa. under other executions, and application was made to the tax collector to allow the money to be paid over to such executions, which he refused, and thereon the sheriff, with- out consent, paid over the money to the levying executions, and then levied the tax fi. fa., without further orders, on other property of the defendant, it was held that a creditor of the defendant, who had attatdied the property last levied on, could enjoin its sale on the tax fi. fa., by alleging the insolv- ency of the debtor, and his inevitable loss if the sheriff was allowed to proceed, (a) This rests upon the ground of irre- parable injury, evidently, A tar sale of lands will be enjoined where it would be void, find the validity does not appear on the face of the proceed- ings; since, in such a case, the deed would be a cloud on the title. (/^) And so equity will set aside such sale when it is (.c)Salsclu;ider ». Fort ilowiird, 45 (;)Il!iriiey v. ("Iiailcs, 4") Mo. Wis. 521. 157. (.y)Steb)jliis v. ('hallis.s, 15 Kan. (ajIJcatie v. Hrnwn, 40 Ga. 458. :,:,. (J)Hurr V. Hunt, is Cal WO'i. 508 TAXATION. illegal, essentially. In a case where the entire quarter sec- tion was assessed, and the owner of three forties of it offered t ) pay the taxes on his three forties, and demanded a receipt therefor, and the collector refused this, but gave a receipt for the taxes on the undivided three-fourths of the quarter, which was received under protest, and afterwards judgment was rendered against the undivided one-fourth of the tract, and it was sold to the state, it- was held the tax payer could have the sale set aside as to the three forties he claimed as owner, since the judgment should have been against the forty as an entire'cy, instead of against the one undivided fourth part of the quarter section. (c) And so a sale will be set aside, although leaving the lands under the lien of the assess- ment, where a statute requires a demand on the owner for personal propert}' for payment of the taxes on the lauds, of which personal proj^erty, subject to levy and sale, the tax jiiiyer has sufficient. But, in granting relief by vacating the sale, the owner will be required to pay an amount sufficient to redeem. ( (7) A deed will be restrained where it will be a cloud, on condi- tion of tiie payment of the legal tax, if the land has been sold on a void assessment.! cj And the owner may be allowed a reasonable time to pay the taxes properly due, where the sale is illegal, l)nt the levy legal. (/j v^ G21. As to the parties in an action for enjoining taxes, an undisputed owner of land may maintain such an action with regard to taxes levied on the land; l)ut if there is an adverse claimant he must be brought in also as a party.(_9) Some- times a city may be a necessary party defendant, as where a tix is levied for special improvements ;(/<) and even a countv court, as where the court has issued railroad bonds, and a tax is levied to pa}' the interest, which is resisted on an alleged ille- gality of the issue. (f) Of course, the same rules are applied to- (r)L:i\vi-c'nce v. Miller, f^tj 111. 502. (/)Pctitt v. Black, S Nub. J2. ((Z)M(;Wliiiiney v. Brinker, (U hid. (5f)Litchtic]d v. Polk Co. 18 la. 70. ■M'K (/i)Gilmore «. Fox, 10 Kan. oOO. (t)h:ciii;el'<'. Outagamie Co. 2G Wis. (i()State v. Sanderson, .l-i ;Mo. 70. ^ 203. TAXATION. 5 it 9 corporations, such as railroad companies, as are applied to individuals, (j) In a suit by a railroad corporation tlie various counties along its line ^may be joined as party defendants, where the questions involved are common to all, and tlie counties are agencies of the state as to that portion of tlie taxes payable into the state treasury. (/>;) A township cannot maintain an action to enjoin the col- lection of taxes levied on the taxable property of individuals. Such an action can only be maintained by the owners tb em- selves. (Z) Neither can one municipality restrain by injunc- tion the collection of a tax levied by another municipality. The tax payers themselves must be the complainants. (w) And so parties severally taxed, and having no common inter- est except in the question of law involved, cannot unite on the ground of preventing a multiplicity of suits when their cases severally present no ground for equitable interference. («) And where a tax, considered in the abstract, is legal and valid, but, when applied to the separate property of two or more persons, becomes, as to such property, illegal and invalid, while each may have his separate action for an in- junction, they cannot jcn? in an application. (o) Where there is a common interest, however, there may be a joint action; or, sometimes, one tax payer may bring an action on behalf of himself and others in like condition ;(/)) as, for example, where a whole assessment for school purposes is unauthor- ized. (. Sexton, :i2 .Mich. But^h. 283. 4(17. (/)U. K. V. McSlianc, .'] Dill. 304. («)II) provided there was a want of authority to levy the tax; but otherwise, not;(c) — that is, the seizure must he on a rold\e\y.[(l) If a <3ollector retains a distress without sale for a longer period than that prescribed by statute, he is held to be a trespasser ■. .lonkio.s, 33 Mioh. 2s. .(/;)b'liVd ,;. Gilbmilh, 27 Ark. OTf). (//)Ilu(l. (^•jBiR'U,©. Ball, 20 la. 2S2. (//)Sft'kius v. Goodale, Ki Me.40O. {d}H. K. »'. ("Icino, 2 Dill. 17;'). (i)IIii\vkins v. iSniiiter Co. 57 Ga. (^)Kanis\vi>rlli Co. 7'. Kiiiid, (jr) Me. Kilj : Fiiiticgan v. FeriKiiKliiia, 15 ]!). Fla. 37!>. (y) .Moore v. Map'eo, 4S Miss. 507. G02 TAXATION. There is a barbarous enactment in Vermont which allows- t'.ie imprisonment of a tax debtor, not for fraud, but merely "for want of goods and chattels whereon to make distress." But the officer is liable, as for false imprisonment, for in- foimalityin housing an impecunious delinquent. (A;) A tax payer may estop himself from complaining, as v.here he has notice of an assessment for municipal improve- ments, and makes no ol)jection, but, contrariwise, encourages the work to proceed under the assurance that it will be paid for.(0 § 623. The protection afforded to tax officers now claims our attention. The doctrine of presumption as to them is macii the same as that relating to inferior courts. (/;/) In New York, however, an assessor is held not protected in a- case where he makes an honest mistake as to the residence of one who proves to be a non-resident; and he is respon- sible personally for the mistake, although at the time of assessment the question, from the facts brought to the knowl- edge of the assessor, was fairly one of doubt. («) I think this decision is not a good precedent ; because an assessor ought not- to be put to peril for a conclusion relating to a matter of fact merely, which is to be decided on evidence presented ; and there seems to be no reason or justice in holding him responsible for a deficiency of evidence. This is a hardship which should not anywhere be imposed on a useful and necessary officer in the public service. The policy of the law is, protection to those who lioiia nde and diligently perform their functions. A col- lector ought not to be required to look beyond his warrant, if this is regular on its face. (oj It is sufficient that the munici- pality levyhig the tax liad jurisdiction of the subject-mat- (A)I5( adniiin r. Goldsmith. 4s Vt. State r. Lul/, 6.3 N. C. o('3; Gore v. 403. Masten, lit! N. C. 503; Lott »;. Hub- (Oeieepcr i\ Bulleii. (3 Kan. 300. Iiard, 44 Ala. 593; Le Koy v. R. U. (;//)Bate >:. Speed, 10 Bush. 044. 18 Mich. 233; Xoland v. Bu.sby, 2S (;()l>onvin «. Slrickland, 57 X. Y. lud. 154; McLean ». Cook, 23 Wis. 4'.i2. 364 ; Xeth v. Crotut, 30 Conn. 5sO ; («)"aiiders i\ Sinunons, 30 Ark. Watson v. AVatson, 9 Conn. 140;, •J7:"i . Hinl V. Perkins, 33 Micii. 28; Loomis v. Spencer, 1 Ohio St. 153;. llnskine w. Ilahnhach, 14 Wall. (513 ; State v. .Jervey, 4 Strob. :i04; Slinw TAXATION. 003 ier.(p) If the paj)er is not a void paper, manifestly he has a right to rely on it. The irregularitij must appear on the face in order to render him liahle.f^) If the property assessed is not wholly exempt, if it is liable to taxation in any form, tbe assessor has jurisdiction, and the collector is safe, in pur- suing his \Yarrant,('r) from responsibility for all irregularities except his own.(.s) And so an assessor is only to be held responsible for bad faith, and is not to be held liable in damages for an erroneous interpretation or application of the law.(i) And a collector's protection is not dependent on the assessor's jurisdiction of the person of the tax payer com- plaining :(/(') but it fails where there is no color of authority in the law ; and it has been held, in Ohio, that, if taxes are assessed under an aiico)i-'itit)iflon(il hiv, the collector is liable(i') — a principle whicli sliould not prevail, because it is not the business of a collector to decide upon the constitutionality of a law, and where a law compels him to perform an act he ought not to be held responsible for the a.ct.(iv) § 62i. Where an illegal tax has been levied and collected, under compulsion, there lies, usually, an action at law to recover it back. A more voluntary- payment cannot be recovered; but the payment must be compulsory to avoid distress and costs, and, in general, it must be made under direct protest. (.c) J3ut where one can, by application for an al)atement, secure the correction of an error, he must avail himself of it, or his payment will be -regarded as voluntary,;.//) V. Dennis, 5 Gilm. 405 : Tlill v. Fi.ii,-- (p). Jefferson City v. \i. 11. 4!) .Mo. ley, 25 111. 156 ; ^Moore r. Allegheny, I'JU. is Pa. St. 55 ; Billino-s w. liussell, (7)Savings Assoc^iation r. Liglit- 23 Pa. St. 189 ; Bianchanl v. Goss, ner, 47 Mo. 393. 2N. H. 491; Kelley «. I«Joyes, 43 N. (/•)Insnrance Co. v. Cliarles, 47 II. 209; Brainard v. Head, 15 La. 3[o. 462. An. 489; llolden «. Eaton, 8 Pick. (.sjCarville «. Aildifon. 62 Me. 436; Underwood w. I{ot)inson, 106 459 Mass. 296; Turner v. Franklin, 29 (OK. R. e. Ilorton, 38 la. 33. Mo. 2-^5 ; Walden v. Dudley, 49 Mo. (M)Norvell 'J.Tripp, 61 ]\[e. 426. 419; Ford '(•. Clougb,8 Greenl. 334; (/jjLooniis «. Spencer, 1 Ohio St. Norvcll ». Tripp, 61 Me. 426; Sava- 153. cool '0. Boughton, 5 Wend. 171 ; (w)('lark v. Axford, 5 Mich. liS3. Chegaray ». .Jenkins, 5 N. Y. 376. (a')Turner r). Aithaus, 6 Neb. 54. (i^)VVaile v. I'riiiceton, 66 :\Ie. 225. (;(>i TAXATION. The general rule is stated by the United States supreme court to he, that taxes, illegally assessed and paid, n.av always he recovered hack if the collector nnderstandsfrom. the tax payer that the taxes are regarded as illegal, and that suit will 1)0 instituted to recover them.(--) The absence of a warrant will not necessarily render a payment voluntary. («) But, where a tax is paid voluntarily, technical illegalities in the assess- ment will not afterwards avail anything. (/>) And where a person, with full knowledge of the facts, voluntarily pays a demand, though attempted or threatened to be enforced by proceedings, it will not be considered as paid by compulsion, and the party thus paying is not entitled to recover back the money paid, though he may have protested against the unfounded claim at the time of payment made. \\ tiere money has been paid under a mistake of the facts, or under circumstances of fraud or extortion, or as a necessary means to obtain the possession of goods wrongfully withheld from the party paying the money, an action may be maintained for the money wrongfully exacted. But such action is not maintain- able in the naked case of a party making payment of a demand rather than resort to litigation, and under the supposition that the claim, which subsequently turned out to be unau- thorized by law, was enforceable against him or his property. (c; In Massachusetts a payment is held to be voluntary, al- though the tax is illegal, if made before the issuing of pro- cess for its collection. ''r/; And so, in Pennsjdvania, it is held that a payment of taxes is not compulsory because made under a threat, express or implied, that the legal remedies for it will be resorted to.(<') In regard to a protest, this is regarded as an assertion of illegality. (/) But, where an officer makes demand under j>ro- cess, it is held, in Michigan, that no protest is necessary. (-. TAXATION. (JOS In Iowa a party paying under protest must then make demand for the return of the money before resorting to an action. (/i) The rule of protest, in California, is that if the officer has notice of the illegality no protest is necessary; if not, a protest is necessary; it being the object of the pro- test to give notice that the legality is disputed, (i) Thus, a tax collector is bound to know the limits of his district; and if he e^iforces a tax bej^ond these limits a general protest is suflticient to autiiorize an action to recover it back.(,/) The forni of protestation is held to be immaterial, although it must be a distinct and definite protest against paying the par- ticular tax on the ground of its illegality ;( A:) and, in the ab- sence of a present remedy, such as abatement by applica- tion, (^) or some mode of effective resistance. ) The same principles apply to an occupdtioii f(tv.(q) And they seem to apply, also, to transac- tions between individuals. If one, without request, pays taxes for another, he cannot recover from the latter ; and this likewise applies as between corporations.! r) However, if one jiays taxes under a title which he supposes to be valid, but which proves to be defective, he can recover from the true |//)Hicli;inl.s •/;. A\'apcllo Co. 4S la. fnilfiUcliett v. M(':ill, 50 Ala. f,(i7. 3(tT. (j)Meck V. McChirc, 49 Cal. t;^'*. ('^)Pc()pl(' /'.r rcl. v. K.ist Saginaw, (j)Ma.s()n V. .Joluisoii. 51 Cal. 012. 40 Alicli. ;!:i(i. (A;)Ki)iiusl)y v. Noland, o9 lad. 234. 390. {7)Galvcstou Co. v. Goiliani, 49 (/)Salmon «. Hanover, 13 Allen, Tex. 271). 119. (/•) Homestead Co. v. 11. R. 17 {m)Walker c. St. Louis, 15 Mo. Wall. 153. 563. 606 TAXATION. owner the amounts he has paid during his claim of owner- ship. (s) And where a purchaser at a tax sale paid taxes after the land was redeemed, under a deed issued hy mistake, he was held entitled to recover the same.(f) But where one relied on a receipt of a collector, given on receiving a check, which was afterwards dishonored, so that the amount was col- lected from the property in the hands of the purchaser, it was held he could not sue the collector. (jt) Where a county pur- chases lands for taxes illegall}- assessed thereon, and sells the land to a purchaser, the latter can recover what he paid Tinder the void certificate, in Wisconsin. (?') To recover back payments it must be shown that the tax was erroneous or illegal in the assessment. An action will not lie to recover from the county for taxes paid merely under a misapprehension in regard to the ownership of the taxed property, where the tax payer had full knowledge of the facts upon which his claim of title is hased.(ic) The illegality may exist in the desupi; and where an action is brought to recover back money paid for a tax illegal because levied in part for an illegal purpose, it is held not to be necessary to show that the money was actually applied to the purpose. (x) And the illegality may be in an overvaluation which the assessors refuse to correct. (?/) The appropriate action is indehlfatua assiDupsit for money had and received ;(^) and may be available to a private cor- poration, as well as an individual. (a) Of course, an action will not generally lie against the state; (6) and in an action against a town recover}- can be had only for what had been paid as town taxes and has gone into the treasury. (c) And, in Massachusetts, it has been held («)Goodno\Vi". Moulton, 51Ia. .555. (^)Ad;im v. Litchfield, 10 Conn. (ijFenton v. 'Way, 40 la. 196. 127 ; Preston v. Boston, 12 Pick. 7 ; (?/)Kahl V. Love, 37 N. J. 5. Stephenson Co. v. Mann}', 56 111. («) Marsh v. St. Croix Co. 42 Wis. 160. 356. (ojDunnell Maniif g Co. v. P.nv- {'w)li. K. V. AVebster Co. 40 la. 16. tucket, 7 Gray, 277. (i)Gillette v. Hartford, 31 Conu. (6)Shoemaker e. Grant Co. 3. Dover, l:i Pick. 20G. aclmsefts. Manuf'g Co. ?>. AmeR- (*^)Ma1leson v. IJoseiidalc, 57 Wis. l>ury, 17 Mass. 463. 2.'')'). (/)Mac'y v. Nantucl)Mar,shal v. Craig, 1 Bibb, 395. 113. v.l— 39 610 POWER OP COURTS OF EQUITY TO SELL LANDS. never since attempted to deal with the legal inheritance of infants without the aid of an act of parliament. "(^) So that, independent of a direct authority given by statute, chancery has no power to order a sale of lands belonging to an infant, under any circumstances whatever, (e) for re-in- vestment, or for any other purpose. And so a statute con- ferring such power must be strictly pursued ;(/) although, of course, whatever is necessary to carry into effect the pro- visions of a statute may be regarded as belonging, by fair implication, to the jurisdiction. (^) Bat it is not to be inferred from the general authority of a court of equity as guardian of infants, that it may sell their real estate whenever it is for their advantage to do so. The power must be expressly con- ferred, although, when conferred, it carries with it the inci- dental methods of giving it effect. (/t) We shall have occasion to recur to this subject again. See sections 634, 638, 639, 641, infra. The same principles apply to the sale of real estate belong- ing to insane persons, (i) And to all persons or corporations under disability; as, for example, religious corporations. (j) § 628. Moreover, it is the law of the place where land is situated which governs all alienations, whether by individuals or by courts ; title can only be acquired and lost in the man- ner indicated by the local statutes; (A;) and whether by deed or by devise. (/) § 629. We will now proceed to consider proceedings in parti- tion, which often involve sales, and which, even on division, partake of the nature of judicial transfers. Essentially, a proceeding in partition is an equitable proceeding ; (m) although it is held that the jurisdiction may be exclusively transferred to a court of law by statute ;(w) and it may even be given to ((-?)Rn.«sel i>. RuRsel, 1 Malloy, 525. (./)Burlon's Appeal, 57 Fa. St. 213. {<')Uogcr.s V. Dill, 6 Hill, 417. (^'jU. S. v. Crossley, 7 Cranch, 115 ; (fjVowlcss' Heirs v. Buckinan, li Clarke v. Graham, 6 Wheat. 577. Dana, 466. (?)McCormick «. Sullivant, 10 (,7)Williamson v. Perry, 8 How. Wheat. 192. 55fi. (»r)Deery v. McCIintock, 31 Wis. (/OFaulkner W.Davis, 18 Gratt. 651. 195 ; Howey «. Going.s, 13 HI. 95. (2) Wing V. Dodge, 80 HI. 567. (n) VVilhridge «. Case, 2 Carter, 3<). POWEU OF counrs of K(irriY to sell lands. 611 a probate court ;(f)) which may then order a sale of lands ;(/;) and the decision of a jjrobate court herein, it is lield, cannot be collaterally questioned. (V/'i As in other cases, so in matters of partition, a court of equity will adjudicate all the equities arising out of the com- mon tenancy, and adjust its decree to the fall exigency of the case.(?') And it is not a necessary preliminary to the com- mencement of proceedings that an attempt should be made for a private partition, (s) And, in general, mere statutury renuhit'Kms do not take away the original jurisdiction of equity in matters of i^artl' tion.{t) The jurisdiction existed at common law,(t() and therefore it can only be withdrawn by an express statute, and not by one giving concurrent authority to other courts. § 630. As to the Idiuls of property subject to the jurisdic- tion, it has been held, in New York, that pergonal property may be partitioned in equity, or sold, if necessary. (r) But this seems to me anomalous. Eeal property, to be the sub- ject of partition, must be held jointly, in common, or in coparcenary. Premises belonging in severalty to two, and no portion of them belonging jointly to both, are not a proper subject of jurisdiction in this regard; as, for example, differ- ent portions of a building, held under separate deeds by differ- ent parties. («') Nor is it all jiropertj' which is jointly held that can be partitioned. Thus, association property, held in common by a community, under a rennnciation of Individual r'ujhts of property, cannot be divided among the members by partition proceedings. (r) But it is held that real property which constitutes a stock in trade of a partnership may be partitioned — there being no outstanding firm liabilities. (//) There can be no partition of a homestead held in common (o)C()X «. Ingicston, HO Vt. 258. (»)Tiiincy «. Slohhiiis, 28 Burl>. (p)Kann's Estate, 69 Pa. St. 219. 290. ((/)Davise. Wells, 37 Tex. 606. (w)McConnel *;. Kihhc, 4.S Jil. v:\. (r)Packard v. King, 3 Col. 212. (.t')Gocsele v. Biiiielrr. 14 How. (8) Lake «. .Tarrett, 12 Ind. 395. 589. (^)Patton V. Wagner, 39 Ark. 2.33. (i/)Patterson v. Blake, 12 Ind. (M)Iioppcr V. Fisher, 2 Plead, 136. 253 r>12 POWER OF COURTS OF EQUITY TO SELL LANDS. by a family, for this would be to break up the homestead. (^) A water-power, mills, and machinery, held in common, may be partitioned all together, (a) And so it is with mining claims, even upon the public mineral lands of the United States; for here the claimants are owners against all other persons, and have vested rights founded on their possession and appropriation of the land containing the mine.(i') Until the time of Henry YIII. partition was confined to coparceners, but during his reign a statute was enacted which extended the right to co-tenancy as well.(c) § 631. The matter of a clear legal title is of primary impor- tance in partition proceedings, and in questions of jurisdic- tion. Equity will not make partition while the legal title is in dispute ;(ci) although, as lately in Illinois and Tennessee, a court of equity may, as an incident, be endowed with power to settle the title. In Connecticut, however, it is held that the law providing for the partition of real estate contemplates an equitable partition according to real ownership, rather than a partition according to the precise legal interests; yet where the legal interests are certain, and the facts render the equitable proportions entirely uncertain, it is held the safe rule is to follow the legal title. (e) In Iowa it is held that even equitable titles are a proper basis for partition. (/) The exact opposite is held in Illinois ;((/) and this is, I think, in consonance with the general rule. Yet, where an exercise of equity jurisdiction in removing clouds on the title is a neces- sary preliminary to a partition, this may, no doubt, always be obtained. (/?) But, where necessary, a title at law must be first established before equity will decree partition. (i) Equity (3)Trotter v. Trotter, 31 Ark. 145 ; (r)Colemau v. Coleman, 19 Pa. St. Nicholas V. Purczell, 21 la. 266; (7 Harris,) 100. Burns v. Keas, 21 la. 312 ; Dodds v. ((Z)Hardy v. Mills, 35 Wis. 141. Dodds, 36 la. 312. (^'jKelley v. Madden, 40 Conn. 274. (a) Cooper ». Water-power Co., 42 (/)Welcli v. Anderson, 2 Clarke, la. 398 ; De Witt «. Harvey, 4 Gray, 299. 497; Hills v. Dey, 14 Wend. 206; ((7)AVilliams r. Wigajand, 53 111. Morrill v. Morrill, 5 N. H. 134; 233. Hanson v. "Willard, 12 Me. 142. (7/)Leverton v. Waters, 7 Cold. 20. (/^)Huglies V. Devlin, 23 Cal. (<)Shearer v. Winston, 33 Miss. 501. 1411 ; Has.sam v. Day, 39 Miss. 392. POWER OF COURTS OF EQUITY TO SELL LANDS. 618 ■will only settle equitable titles, (j) unless otherwise provided by express statute. And so, where a jDure question of law is presented in the construction of a deed, it has been held that equity will require the title to be established at law as to the deed in question ;(/»•) for, in general, a bill for partition will not lie wiiere the title is denied, or where it de^^ends on doubtful facts, or on questions of law. (7) If the title in dis- pute, however, is an equitable one, the court may, as above remarked, settle it ; but otherwise, in the absence of an express statute, it can onl}^ retain the cause to afford the parties the opportunity of settling the matter of title at law, or else dismiss the petition, as the circumstances may seem to require. (?n) § 632. A present right of possession is also a prerequisite to the exercise of the jurisdiction. A mere right of entry is not sufficient. Where lands are held adversely, so that the possession amounts to a disseizin of the petitioner, and the premises were never held by them together, the petition can- not be sustained. (?i) And a tenant in common of a mere reversion in land expectant on a lease for years, cannot have a, partition; and if he brings a petition when he has no pres- ent right of possession, and acquires such right pending the proceedings and before hearing, this subsequent right will not save the jurisdiction and entitle him to a decree. (o) Estates in remainder, or reversion, are always excluded, (^9) except where tliey have become immediate, carrying a present right ; when they are, of course, subject to the jurisdiction, as any other estate, (rj-) And the same principles apply to an estate held in trust. (r) Actual dccupancy is not required; partition may be made (/)C;irtei- v. Taylor, 3 Plead, 80. (OT)Diicas v. King-, 2 Stockl. 277. (/.:)Hoiton V. Pledge, 29 Ala. 478. (vv)Brock v. Eastman, 28 Vt. (558. (^jDewitt V. Ackernian, 17 N. J. (o)Hunnewcll v. Taylor, 6 Cush. Eq. 215 ; Manners v. Manners, 16 N. 472. J. Eq. 384; Van Riper?). Berdan, 2 (/))Robertson v. Robertson, 2S\van, Green, N. J. 132 ; Wilkin v. Wilkin, 197. 1 Johns. Ch. Ill ; Coxe t>. Smith, 4 ((?)Tindal v. Drake, 51 Ala. 577. Johns. Ch. 271 ; Blymman «. Brown, (r)lbid. 2 Vern. 232. 014 POWER OF COURTS OF EQUITY TO SELL LANDS. of unoccupied or vacant lands, the law itself annexing the r(;;!it of 2)ossessio)i to an undisputed title. (.s) The requirement is that there should exist a present and uudispiifcd right of j)OSsession. And this requirement extends so far that parti- tion will not be granted until an estate is settled, for the lands may be needed to pay the debts of the estate, so that tlie right of the heirs is not absolute until it is ascertained that the lands will not be needed for this purpose. (f) There seems to be an exception in Maine as to an adverse occupation. The court holds that unless the adverse pos- session has continued long enough to ripen into a title, parti- tion may be made of the lands the disseizor occupies, and without making him a party. (») I'ut the general rule is as I have stated above. On this, the Mississippi court remark: "The rule is that a court of equity will never grant relief when the complainant's title is denied, or suspicious, until he has established his title at law. Partition can only be made between those in the actual or c(mstructive possession. Other claimants must establish their right by suit at law, and obtain actual seizin before they can demand partition. A mere right of entry will not sustain a proceeding for partition. "(/•) It is not necessary, however, that all should have the same possession. One may have an avtiud, and another — as, for example, a sole re- mainder-man — may have a eonstructire possession ; and the latter can maintain a l)ill for partition. (/c) The common- hiw rule still prevails that one must be in possession, or seized, in order to have a standing in court ;(.r) but netual oc- cupancy, as above remarked, is not necessary. It must be a present riijlit of possession, and not a mere right of entry, as for condition l)roken.((/) And a l)ill will not lie to compel (A-)Hyers «. Danley, 27 Aik. 77. «. K;i.stinau, 2^^ Vt. (5.')S. A mere (i)Bc'echerv!. Heecher,4o Conn, u'u . judjiment lien, liowcver, coufeiring (u)lilton V. Palmer, 31 Me. 487. no title, does not hinder a jjartition. (»i)Spiglit v. Waldron, 51 Miss. 3G0 ; Danton v. "Woods, 19 La. An. oo't-. Shearer v. Winston, 33 Mis.s. 151; (;r)Sullivnn >'.Siillivan,4IIun.2(tO. IMcc V. Crone, 44 Miss. 577 ; Clnpp (.?■) Adams -n. Iron C^o. 24 Conn. 230. f). ]5romagham, 9 Cow. 530; Wilkin (//)Whitten v. W hilt en, :i(; N. H. V. Wilkin, 1 Johns. Ch. Ill; Brock 32(1. POWER OF COURTS OF EQUITY TO SELL LANDS. ()15 persons in adverse possession of lands to surrender them, in order that they may be partitioned, even though the bill alleges that all parties claim under the same will, and prays the construction of the will;(^) unless tbe matter involves mere equitable rights, in contradistin(3tion to legal rights, (a) And so, where one tenant in common ousts another, the latter must establish his title at law, in the absence of a statute giving the equity court incidental jurisdiction to settle all titles, before he can maintain an action for partition ; (h) and an exclusive possession may amount to an ouster; if it does not, it will not exclude partition. (c) And where one holds an irrevocable power of attorney to sell lands for the benefit of the owners, none of the owners can maintain a suit for partition without the consent of all; because here is a barrier both to title and possession. (rZ) In Massachusetts it is held that although a mortgagee in that state is regarded as the owner of the fee, and conse- quently has a present right of possession, even before con- dition broken, yet the right of the mortgagor, as against all others, will entitle him to maintain a suit for partition against others ; although, in such case, the mortgagee is not a proper party, ((') which disability extends so far that if one tenant in common becomes assignee of a mortgage on the lands, his co-tenants, who derive their title as heirs at law of the mort- gagor, cannot maintain a petition for partition against him, even if the mortgage and assignment are not recorded. (/) On the principle that a p;-esent right of possession is essential, one who has title only under a deed which reserves to the grantor, who is still living, the use and occupation of the premises during his life, cannot have partition. (.7) v} 633. As to parties, in (/cncral, these should be all parties in being having a present estate or right in the lands, or a future interest, and whether vested or contingent. While (2)All)f'rf;oUi(; w Cliaplii). Id llicli. ((/jSuldcn v. Vennily.'i, 2 Saiidf. Eq. 42H. .')(;«. (a)Rozier v. Gridith, :',l Mo. 171. (cjlMillcr «. Unidlev, 2:1 Pick. 9. (6)Hozier v. .Tohnson, :]:, Mo. ;52ti. (//Hlodgctt v. IlildicUi, 8 Allen, (c)Wommiick v. 'Whitniore, 58 Mo. 18C. 448. ((7)Niehols v. Nichols, 28 Vt. 228. 616 POWER OF COURTS OF EQUITY TO SELL LANDS. a complamanf must have a present right of possession, as above explained, yet all interests of persons in being shoukl be brought before the court, in order that full equity may be established, in view of all equitable rights in the matter, and then the decree is conclusive of the rights of all, and a sale will bar the future contingent interests of persons not in esse at the time, even though no notice is published to bring in unknown parties, and although such future owners may take as purchasers under a deed or will, and not as claimants under any of the parties to the action. (/<) There is a distinc- tion in this matter, as above intimated, between plaintiffs and defendants, for, although remainder-men and reversion- ers may and should be made defendants, they cannot institute proceedings, at least against others not seized of a like estate in common with them. The right is only given, as we have already considered, to one having actual or constructive pos- session, which a remainder-man has not, during th« continu- ance of the intervening estate. (i) A purchaser of a homestead rujht, surrendered b}^ deed of a husband and wife to him, may maintain a suit for partition against others holding with him title in the tract of which the homestead was an undivided part before the sale to him. The homestead right, as to its peculiar nature, is, of course, annulled by the transfer, and the purchaser holds the fee.(j) And so heirs of one tenant in common may maintain a suit for partition jointly with the survivors, all deriving title from a common source. (A-) As in other cases, non-resident defendants may be brought before the court by means of statutory notice. (Z) Neither the administrator of an estate, nor a creditor thereof, is a necessary party, even in a state where partition is allowed before a settlement of the estate, and even if the personal property is insufficient to pay the debts. In such case the partition is made subject to the claims of the cred- itors of the estate, and to the right of the administrator to fA)Brevoort v. Brevoort, 70 N. Y. (t) Sullivan t). Sullivan, 66 N". Y. 37. 13(;i; Kester v. Stark, 19 111. 328; (/)Ferguson «. Reed, 45 Tex. 575. Whitman ». Reese, 59 Ala. 532. (A;)Tindal v. Drake, 51 Ala. 574. (OPlatt V. Stewart, 10 Midi. 260. POWER OF COURTS OF EQUITY TO SELL LANDS. 017 -appl}' for leave to sell the lands for the payment of the debts. (?«) Where a statute does not permit a disinheritance of any lawful heir, if a child be omitted from a will he may bring an action for partition, in order to have a proper share as- signed him-f/i") In North Carolina it is hekl that a midow entitled to dower is a necessary party to partition proceedings. (o) But it is otherwise decided in Kliode Island, on the ground that dower before assignment is not an estate, but a mere right, (p) In Mississippi a widow may institute partition proceedings in order to have her dower assigned, (r/) Where parties holding a lien on any of the undivided in- terests, such as a mortgage, are made party defendants, they will be bound by the decree of j^artition, and will be limited in their claims to the share set off in severalty to the party under whom they claim, (r) Where one of the parties hecomcH a haiilcrii.pt, daring the jiroceedings, the partition is not thereby prevented ; but the assignee merely takes subject. to the right of the other parties. (.9) § 034. In regard to infant 'parties, we remark that minors may be either plaintitfs(Y) or defendants in j)arfcition proceedings. If defendants, they must be brought before the court in the manner prescribed by statute. (it) And they may be plaintiffs jointly, in an ex parte proceeding, either with adults or where all are minors ;(f) and so plaintiffs and defendants may all be minors. (/r) As to parties woi i)i esne they are represented "by those who take subject to their rights. (x) An infant cannot be brought before the court by means of (m)Speor v. Speer, 14 JST. .J. Eq. (<)WaiigIj. «.. JJlumeiithal, 28 Mo. 240. 463; Tliomton v. Thornton, 27 Mo. (n)Ga<2:c». Ga.^c, (t Fost. r,Xi. 302; Burks ». Burks, 7 Bax. (Tenn.) (o)Gregor3' v. Grcii;(ny, 01* N. C. 35.'). 522. (M)Ni(;liol.s r. MilclicU, 70 111. 2.i8. (p)Hox.sie «. Ellis, 4 K. I. 123. (■«)L:xrned v. Kcnshaw, 37 Mo. 4.58. (jjHill ». Gregory, 56 Miss. .341. (y,c)Wilson v. Duncan, 44 Misii. (r)Milli^an v. Poole, 35 Ind. 68. 648. .(8)Baum V. Htern, 1 Ilicli. (S. C.) (.?;)Rf'inders v. Koppclmann, 08 •415. ]\Io. 4S2. (il8 POWER OF COURTS OF EQUITY TO SELL LANDS. the entering of an appearance for them by a guardian ad Jitcni in a partition proceeding. There must be a statutory- service ; and if there is not, the whole proceeding is void as to them,(?/) and they will have a right to disaffirm on arriv- ing at full age, althor.gh they may estoxD themselves from doing so if they receive, on settlement with their guardian, the proceeds of the partition sale.(^) § 635. It is held that duplicity, or what is called in equity multifariousness, will not be allowed in partition suits any more than in other suits. Thus, where one is a tenant in common of two parcels of land in different proportions, — of one as co-tenant with one j)erson, and of the other as co-ten- ant with the same persons and others, — he cannot have a de- cree for partition of both in one proceeding, (a) Division cannot be made of two tracts of land by means of one suit, miless the}' are owned throughout by the same persons. (6) But lands jointl}^ owned in tiro or more counties may be partitioned in the same proceeding, (c) § 636. Where lands cannot be equitably partitioned, it is competent for the court to order a sale in order to make an equitable division of the proceeds.(fZ) However, in Louisiana, if some of the parties are minors, the statute requires the consent of the family to sell on terms of credit. (e) Usually, I suppose, the sale in partition should be for cash, where a decent price can be thus obtained. In Alabama, a sale can- not be made at all without consent of the parties. If the premises are not susceptible of an exact division, the}^ may be divided into unequal shares, and compensation allotted from one to another(/) — a system which I think might impose much hardship in special cases. Yet a sale in partition is not to be considered in any instance as in inritum, like a sher- iff's sale on execution ;(^(,') nor as divestimi title, hwi rather as (^) Chambers v. .Jonos, 72 111. 27i3. (f)Daniels v. Moses, 12 S. C. 130. (2) Walker t). Mulveaii, Tli 111. IS; (d)Higginbottom ». Short, 25 Miss. Corwia v. Shoup, 76 111. 24(i. 160. (ry)Hnnnewell ». Taj'lor, 3 Gray, (e)Morgans Succession. 12 Lu. 111. An. 153. (//jKitchen v. Sheets, 1 Carter, (/)01iver u. Jernigan. 46 Ala. 41. (hid.) 138. (5»)Packniau v. .Meatt, 4!t Mo. 34;i. POWER OF COURTS OF EQUITY TO SELL LANDS. 619 defining it, and dissolving the tenancy in common. (/i) The proceeding dissolves the unity before existing, so as to enable each owner to have, possess, and enjo}', in severalty, his own share of the estate under his original title. (?) And, so far as infants are concerned, the proceeds of a sale retain the char- acter of real estate for the purpose of succession, until they vest in some one who has capacity to change the nature of the estate, and give it the character of jiersonalty; unless, indeed, the law of the place prescribes diiferently; in which case they will be regarded elsewhere as personalty. (.;') Where necessary, the action of the court is to order a sale and distribution. And it is necessary where the estate can- not be divided without injury. A case came to the United States supreme court, from California, involving a hotel and the land on which the celebrated big trees of Calaveras stand. The court said therein: "These trees are ranked among the curiosities of the world. One of them, as the evidence shows, was twenty-five feet in diameter when it was cut down, and took five men twenty-two days to cut it down. Others still standing are thirty feet in diameter. The place ia visited by people from all parts of the world, to see these trees ; and the hotel did a profitable business for this reason. It is apparent that the joint ownershij) of this property must make it far more vahiable than it would be if s})lit up inta small pieces, held by persons who would be rivals for the profits arising from visitors," and it was lield, therefore, not susceptible of division. (/.) Where a sale is made the court has jurisdiction for the distribution of the proceeds ;(/) and will order a sale when this is advantageous to all the par- ties. (/«) Preliminary to a sale, it is, perhaps, generally requisite to appoint commissioners to report on the feasibility of making (/()llarl:in v. L;m,ii'h:iin, (jl) Pa. Hi. (/) bridges «. Sperrv, Hf) U. S. 40(1. 2:>,r,. (/)IIalslCiid V. Ilalstcad, 5r) N. V. (/jTablor ». Wiseman, 2 Ohio St. 442. 2()S. (m)Graiiaiii w. Graliam, S Bush, (^■)Oberle ». Lurch, li Green ('h. 334; Metcalf «>. Iloopingardner, 4.'> 346. To Uie same etlei.t see Horlon la. .510. V. McCleary, 47N. Y. 21. 620 POWER OF COURTS OF EQUITY TO SELL LANDS. a division. In some states this is so imperative that a sale is void without it, and it cannot be done after the sale is made, so as to support the sale by showing its necessity. («) § G37. The work of partition should be thorough, extending to the entire tract, and one tenant in common cannot prop- erh' be allowed to have partition of only a part of the com- mon property, and have his entire interest located in that part.(o) Yet, if it appears during the proceeding that the par- ties are only tenants in common of a part of the tract de- scribed in the petition, the court may make partition of that part.(2J) And, also, petitioners may elect to consider their share as an undivided part, and thus have partition from the other tenants in common made defendants, and thus con- tinue joint tenants among themselves. (fj-) § 638. The foregoing may suffice as an outline exjilanation of jurisdiction in matters of partition. We proceed to con- sider other phases of the power of equity in making sales of land. And, throughout, the principle prevails that all per- sons with vested rights of any kind must be made parties to the proceedings, or otherw^ise the decree will not bind them. And, although equity — or perhaps it would be more proper to say because equity — is regarded as having especial charge of infants and their property, there is no inherent power to make sales of their lands for purposes of re-investment, merely on the judgment of the .court that their interests will be thereby promoted. The power must be derived from statute, and must be strictly pursued, and the infants concerned must be made parties to all proceedings for the disposition of their interests. It is true that, as intimated, a court of equity has a pro- tective jurisdictioii, which must, in the proper mode, "be brought into activity and life whenever non-action would result in the loss and destruction of the infant's estate. And if there be no guardian, the court must act without a guardian in all cases where the act required to be done is such that it can (w)Denning v. Clark, 59 111. 218. (j9)Baldwiu v. Aldricb, 34 Vt. 52G. (o)Sutter V. San Francisco, 36 Cal. (g)Ladd v. Perley, 18 N. H. 390. 113. POWER OF COURTS OF EQUITY TO SELL LANDS. (')21 be performed with fidelity and proper care by the ordinary machinery of the court. No one may be wi-lling to qualify as guardian. The court has no power to enforce the acceptance of that trust by any one; but it has masters and commis- sioners amenable to it, and when the act to be done for the protection of the infants can be done by one of these officers, the court cannot refuse to act for the reason alone that there is no guardian." So remarked the Mississippi court, in a case where land held in trust for infants was sold for taxes, and they, having no guardian, applied to the court for the right to redeem, by having a part of the land itself sold and the pro- ceeds applied to this purpose — they having no other property with which to redeem. And the court went on to say further : "The facts stated in the bill present a strong claim for the interposition of a court of equity. Under the statutes as they existed at the time the sale for taxes was made, the appellants were entitled to redeem their land at any time before the ex- piration of one year after they attained their majority. In the meantime — that is, during the period intervening the lapse of two years from the date of the sale and the time they should redeem, or validly offer to redeem — they were not entitled to any rents or profits of the land, and were lia- ble, when they came to redeem, for any valuable imjjrove- ments made on the land by the purchaser. They were witiiout any other property, and were consequently unable, as they allege, to redeem, except through the means to be derived from the land. As the case stood at the filing of the bill, they could derive nothing from the land in the way of rents; and, necessarily, a resort must be had to a sale of a portion of it in order to save the remainder. If they had been adults, they could have sold the land, or any portion of it, during the time they were allowed to redeem, and applicid tlie proceeds to that purpose. Being incapable, from their infancy, of making a sale, and having no guardian who cuuld make appli- cation to the court for a sale, it must result that they could apply themselves, through their next friend; or we must con- clude that, being entitled to a valuable estate, they are com- <)22 POWER OF COURTS OF EQUITY TO SELL LANDS. pelled, by some inexorable rule of law, to suffer in want and povert}', and allow the whole of their estate, by lapse of time, to be lost to them, forever from an incapacit}' on the part of any court to permit their parting with their claim to a por- tion of it as a necessary means of saving the remainder. The control of infants and their property constituted one of the original subjects of the jurisdiction of the chancery court ;"(>) that is, protective jurisdiction. And the Arkansas court remark: "The general jurisdic- tion over the persons and property of minors belongs to the chancery courts. It is a very high trust, involving the most delicate and important interests of a helpless class, which is peculiarly the subject of the jealous and watchful care of ■chancer}-, and which is peculiarly liable to injury from the greed of crafty men and the carelessness of relations. "(.s) It is even intimated, l)y the New York supreme court, that a court has the power, and that it is the duty of the court, to exercise it and interpose in behalf of an infant partj", witJiout his application, in order to prevent a sacrifice of his property in a sale wliicli has taken place, and to direct a resale ;(fj which is certainly correct in principle. For, in all cases of the sale of real estate belonging to minors, for purposes of re -investment and the like, the court is bound to see that the minors" interests are thereb}- promoted. (w) And, for this purpose, all sales under decree are subject to the £uper\Tision of the court. (r) Indeed, the court is held to be the vendor, and so will confirm or reject the sale as the law or justice of the case may require. («■) The commissioner making the sale is merely the agent of the court. (a;) In North Carolina it is held that, where a public sale results unsatis- factorily, the court has power to confirm a private sale after- (r).Iolin« I'. Smith. 56 jMiss. 731, [u) Ex parte Sew fi\:X,\. 45(;. 3 7(i. POWER OF COURTS OF EQUITY TO SELL LANDS. 62'> wards on an advantageous offer for infants' lands. (,^) See § 626, supra, and §§ 639, 641, infra. § 639. Not only, as above stated, may sales be ordered ) And such sale may be had of the land when held in trust, at the instance of the tiustee;(/?) and without any report from commissioners ;(<'/) and the entire proceeding being conformable, substantially, to all the statutory re- quirements, the trust estate may be re-invested on the same trusts, so as to be binding on the living and the unborn heirs. (>) It is the duty of the chancellor, before he can adjudge a sale, to be satisfied that the interest of the parties requires a sale to be made, and then to see that the re-invest- ment is properly effected. (./) And the notice must be in pur- suance to the power to sell, substantially. ((;) See § 638, supra, and reference. (.y)]{o\v]and ♦>. Thompson, 1?> N. (fjOrmshy «. Terry, 6 Bush, ^nA. C .^04. In North Carolina it has been lield (z)Perry v. Perry, 65 Me. 390. that per.sons not m('S.>(earenot Ixuuid (a)McLellan v. McLelhm. G5 Me. when the estate in remainder is liiu- .500. ited to them. Watson «. "Watson, 3 (6)Paul ». Paul, 3 Bush, 483. Jones' Eq. 400. (c) Allen V. Graves, 3 Bush, 492. (/jEwin.i; r. Kiddle, S Bush, Tu.i. (d)Grimth v. Burton, :VBusli, ?,:>9>. (^/jCcfer v. Miller, 7 Bu.4. 527, note, nature of the lien, p. 527, note, disqualification of judge, p. 527, note. See CoM.Mox L.\w ; Courts of Probate. ATTORNEYS. authority of a court over, § 177. p. 173. See Appe.\r.\nce. AWARDS. See Arbitrations; Equity. 630 INDEX. AXIOMS. as to declarations of juiisdiction, ^ 56, p. 41. BANK (NATICmAL.) a foreign corporation, § 542, p. 524. See Attachment. BANKRUPTCY. jurisdiction ousting tliat of other courts, $ 76, p. 64. See Attachment ; and chapter headings on page 340. BIAS. See Judges. BENEFITS. See Churches; Voluntauy Societies. of clergy. See Common Law. BILL FOR REVIEW. See Review. BOARD OF TRADE. force of regulations of, j 150, p. 142. BOUNDARY. of state dellned by legislative department, § 44, p. 108. wiien controlled by the course of a stream — change, § 120, p. 116. See National Boundary; Venue. BURDEN OF PROOF. See Notice. CANCELLATION. See Eyurrr. CAUSES OF ACTION. sev(M-ance of, p. !>, note. CERTIORARI. what it reaches, § 65, p. 46. See Change ov Venue. CIIANC^ERY COURTS. See Common Law. CIlAN(iE OF VENUE. when discretionary, §§ 122, 123, 127, pp. 118, note, 120, 122. cause — prejudice, § 12o, p. 119. transfer of cause, § 122, p. 118. when want of jurisdiction' will justify, § 122, p. 118. when application must be made, § 1213, p. 119. waiver of right, ^ 123, p. 119. for prejudice — who must apply, § 123, p. 120. indi(Mmeiit not changed in criminal case, § 123, p. 120. i-cnidval by certiorari, § 123, p. 120. prosecuting attorney may apply, § 123, p. 120, note. in contempt, § 123, p. 120. by supreme court, § 124, p. 121. cause of action arising in another count}', § 124, p. 121. convenience of witnesses, >> 125, p. 121. must conform to statute, ^ 126, p. 122. cause must be actually removed, § J 26, p. 122. plenary power of the court to which the cause is removed by the change, § 126, p. 122. in quo warranto, § 127, p 123. l)y legislation, i 128, p. 124. to remote county, j 129, p. J 24. successive removals, § 12 J, }>. 124. * from justice of the peace to nearest justice, § 129, p. 121. joint defendants must unite in the application, ^ 130, p. 125. provisional courts, § 131, p. 125, See Common-Law Courts. INDEX. 63] CHURCHES AND VOLUNTARY SOCIETIES. general jurisdiction over, § 148, p. 139. by-laws and regulations of a lodge, § 14S), p. 130 of a board of trade, § 150, p. 141. of churches, § 152, p. 142. forfeiture of property in a church by seceding members, § 152, p. 146. interference with church officers, § 153, p. 146. CITIZENSHIP. non-residents may sue non-residents in state courts, ^ 114, p. 108. CIVIL WAR. See Habeas Coupus; Parties. CLAIMS AGAINST THE GOVERNMENT. See chapter headings on iwge 353. CLASSIFICATION. of jurisdictions, § 7 et seq., p. 7 et seq. COMITY. as to cases pending and undetermined, $ 60, p. 44. COMMENCEMENT OF SUIT. See Date. COMMISSIONS. See Equity. COMMON LAW. a source of jurisdiction, § 67, p. 52. whence derived, >§ 198, p. 203. chief basis of jurisprudence, § 199, p. 204. moditicatlons'thereof, §§ 200, 204, 205, pp. 207, 211, 212. distinction between principles and rules, ^ 201, p. 208 standard of applicability, § 202, p. 209. common law of this country specitied, § 203, p. 211. statute remedy — when cumulative, ^ 206, p. 212. no common law of the United States, ^ 207, p. 213. leading iiecuiiarily — trial by jury, ^ 208, p. 213. general rule for determining, ^ 208, p. 213. lex lacrcd.toria, § 208, p. 213. benefit of clergy, § 208, j). 214. ecclesiastical property, § 208, p. 214. divorces, § 208, p. 215. ecclesiastical courts, ^ 208, p. 215. chancery and admiralty courts — concurrent jurisdiction, $ 208, p. 215. want of early precedents in this country, effect, § 209, p. 216. exemplitications of pal)lic grants, § 210, p. 216. powers of justices of the peace, § 210, p. 217. survivor in trespass continuing suit, § 210, p. 217. law concerning accidental tires, ^ 210, p. 217. attachments, \ 210, p. 217. impeachments, § 2Ht. p. 217 remedies in United States courts, § 212, p. 218. crimes and misdemeanors, § 213, p. 21s. felonry does not merge a private wrong, § 214, p. 222. See Co.M.\io>;-L.\w Courts; Courts; Crimes; and see chap- ter lieai lings on page 203. COMMON-LAW COURTS. as to distributions, § 71, p. 53. new courts endowed with exclusive jurisdiction, >} 68, p. 54. place of holding court — cliaiige in, s^ 121, p. 117. See ('uan(tK of Venue; Co.m.mox Law Courts; Courts; Statutes; Terms; Venue. CONCEALED PROPEIiTY. See Attacument. CONCURRENT .JURISI)I(!TION. of federal and slate courts as to crimes, § 113, p. 100. over process, § 156, p. 150. in rem proceedings, 4 156, p. 150. 632 INDEX. CONCUKllEM- J [JRISUICTION— Continued. law ;ind equity jurisdiction in same court, § 157, p. 150. concurrent suits — wlicie suit is prosecuted in two courts one of the actions will be susiiended until the determination of the other, § 158, p. 151. priority — rule of, exceptions, § 159, p. 156 See CouKTs of Peobate ; Equity ; Exclusivk and Concuk- KENT JUKISDICTION. CONFEDEIIATE COUliTS. See Courts. CONSENT. may give personal jurisdiction, § 8(5, p. 74. exception as to corporations, § 86, p. 76. See Courts ok Pkoijate. to arbitration allowed, j 66, p. 51. takes away error, § 66, p. 51. restores jurisdiction, when, § 66, p. 51. See Amouxt; Appe.\r.\nce ; Jurisdiction. CONSTITUTIONAL LAAV. constitutionality of statutes judicially determined, §§ 6, 55, pp. 3. 39. See Justices op the Peace; Habe.\s Corpus. meaning of phrase '-until otiierwise provided for,"' § 68, p. 54. right of trial by jury guarantied by a constitution cannot be indirectly taken away by iegisiutiou an}- more than directly, § 68, p. 54. nor can constitutional equity powers be taken away by a statute re- quiring sulimission to a jury, § (>'<, p. 54. constifutitional courts not aliolislied or altered by legislation. ^ ii''^, p. 54. but statutory jurisdiction mav be annexed to constitutioual, § 6s, p. 55. statutor}' courts may he abolislied, § 68, p. 55. legislative grant not subject td review, § 68, p. 55. For Constitutional Limitations, see chapter headings on p. 33. See, also, Constructkjn ; Legisi.ature ; M.^nda-mos; Na- tional Boundary. CONSTITUTIONS. as sources of jurisdiction, § 67, p. 52. CONSTRUCTION of '-shall'- and " may," § 73, p. 63. of enlarged jurisdiction, j 6b, p. 53, of the powers of inferior courts to be strict, § 43, p. 31. how far implications may he indulged therein, § 4.3, p. 31, CONSUL. See Parties. CONTEMPTS. See Courts op Probate. power to punish for contempts essential, ^ 178, p 177. nature of the power — distinction between superior and inferior courta — imprisonment, ^ 179, p. 178, note, need not be allowed a defence, § 179, p. 179, note, re-sentence for .same contempt, § 179, p. 179. note, disobedience of officer — rule nisi, § 179, p. 179, note, each court judge of its contempt, j 179, p. 179. decision not usually reviewable, § 179, p. 180. may be reviewed, when and how, § 179, p. 180. disqualification to nullify contempt proceedings — burden of proof, f 179, p. 180, note, absconding offender — sentence in his absence, § 179, p. 179, note, justice — words spoken out of court. ^ 179, p. 180, note, neglect to comply with order, § 179, p. ISO, note, refusal to serve as juror, § 179, p. 181, note, refusal to pay alimony, ^ 179, p. 181, note. INDEX. 633 OONTEMPTS— Continued. habeas corpus, to try regularity of contempt proceedings, f 171), p. ISl, note, nature of proceeding, § 180, p. 181. modes of punisliment, '^ 180, p. 182. witness before grand jury, ^ 181, p. 182. disobedience to subpoena, ^ 181, p. 182. refusal to answer improper question not a contempt — hnhi-as corpus, § 181, p. 183. what constitutes contempt in a witness, attorney, or party, . 1S{!. contempt when no action pending, ^ 188, p. ISii contempt for not paying money, § 18il, p. 187. (See above.) demand and refusal, ^ I8it, p. 188. injunctions, § UK), p. 188. justices of the peace, i 191, p, 188. proceedings not retroactive, § 192, p. 188. citation to sliow cause, § 193, p. 189. clearing contemjjt, § 194, p. Ib9. pardon in conteini)t matters, § 195, p. 190. party precluded from prosecuting litigation, ^ 19(5, p. 190. indirect or constructive (T)nteini)ts — general rule — newspapers, ^ 197, pp. 191-199. CONTK.'VCT. See ApMiiiAi/rv; Kcjitity ; Li>:x Loci. t)34 INDEX. CO KPO RATION. where and how service may be made on, § 114, p. 109, note. See Attachm:p:nt ; Churches and Voluntary Societies; Contempt ; Equity ; Quo Warranto. COSTS. no judgment for without jurisdiction of tlie cause, ^ 15, p. 11. COUNTY. division of, does not oust jurisdiction in pending r;auses, ^ 117, p. 113. recoverv of costs hy one county from finother in criminal case, § 120, p. il7. Sue CitiMES; V^enle. COURT OF CLAIMS. See cliapter headings on page 353. COURTS. control of attorneys, § 177, p. 173. orders of, only bind parties, § 181, p. 18-4, note. change of place of holding, ^ 121, p. 117. will not entertain a suit against the trustee of a foreign government. ^ 91, p. 80. may decide on their own jurisdiction, how, j ,56, p. 41. must sua sponte keep in view the boundaries of their juri.silictiou, p. 48, note *. newly established for the trial of offences previouslv committed, j ()8, p. 52. of foreign nations — how jurisdiction inquired of, $ 58, p. 42. of sister states — how jurisdiction iu(iuired of, ^ 59, p. 43. See Co.mity; .Jurisdiction. will not administer public funds as equitable assets, ^ 49, p. 39. supreme courts held to be inferior, in Mississippi, j 42, p. 30. inferior — powers strictly construed. § 43, p. 31. superior and infericjr defined, ^ 27, p. 23. superior — how may be limited, § 2>-, p. 24. superior — how conform to common-law proceedings, § 29, p. 24.. how a court may be both superior and inferior, ^ 2;l, p. 25. of foreign nation — decision as to jurisdiction, § 20, p. 13. dejure and de Junto, p. 14, note *. illegal — general rule, ^ 21, p. 14. confederate, ■} 22, p. 14. legalizing proceedings of, § 23, p. IG. general rule as to, ^ 24, pp. 10-21. COURTS OF PROBATE. limits of jurisdiction and its nature, § 271, pp. 282, 283. authority mainly statutory, § 272, p. 283. relation to courts of chancery, § 273, p. 283. general rule, § 273, p. 284. concurrent jurisdiction, § 273, pp. 284, 285. legacy assented to sued in other courts, § 273, p. 285. ccjnsent cannot give jurisdiction, « 273, p. 2'^5. mistakes only cured by appeal, § 273, p. 285. judgments not questioned collaterally, j 274, pp. 2S5-2S7.- See, also, note on jjage 2^7. last domicile determines juri.sdiction, § 275, p. 288, wills— cognizance .of , U 276, 290, pp. 289, 297. appointing power, § 277, pp. 290, 291. controlling and removing power, ^ 278, p. 291. testamentary trusts, §j 277, 250, 285, pp. 290, 293, 296. assets of estates, § 279, p. 292. claims, § 2b0, p. 292. property in administrator's hands — title to, § 280, p 293. homestead in dispute, § 280, p. 293. INDEX. 635 COURTS OF PROBATE— Continued, trusts, § 280, p. 293, note, partition and dower, § 281, p. 294. selling lands to pay debts, ^ 282, p. 294. seliino- lands for other purposes, ^ 282, p. 295. Iiindinii' out orphans, v'i 'Ki, p. 29(j. selling homestead to pay debts, § 284, p. 296. deternuning bequests, ^ 28.'5, p. 296. partnership accounts, j 286, p. 296. set-otfs, § 287. p. 296.' personal property in another state, j 288, p. 297. no control of e.vecutor in another court, § 289, p. 297. specific performance. § 29], p. 297. attachment, § 29], pp. 297, 298. fraud, § 292, p. 29 s. change of venue, ^ 293, p. 298. limitations, j 294, p. 298. remote settlements, j 295, p. 298. rents, § 296, p. 298. JiabetiK corpus, ^ 297, p. 298. contempts, § 298, p. 298. settlement and distribution, f§ 280, 299, 300, pp. 293, note, 299, 300. disqualification of judge, § 301, p. 301. terms, j 3(>2, p. 301. CEIMES. committed by a non-resident within the state, wholly statutory as to the United States courts, j 304. pp. 303, 304. summary of statutory crimes as to Uniteil States courts. § 3()."), pp 3tt4^306. criminal proceeding cannot be used to collect a dei)t, ■J 306, pp. 306, 307. "once in jeopardy" explained, § 307, pp. 307, 30s. justice enforced by private citizens, j 308, pp. 308-312. all crimes are several, even if jointly committed, § 307, p. 307, note. punislial)le attempts, § 3o9, p. 312. wrongful intent nece.ssary, ^ 310, pp. 312-314. etieet of pardon on jurisdiction, § 311, p. 314. venue, § 312, p. 314. venue as to extra-territorial olTences, § 31.'5, pp. 315-321. illegal voting beyond tin; limits of the state, § 314, pp. 321-323. responsibility of allegiance abroad, § 315, p. .323. laws have no extra-territorial operation, ^ 316, pp. 323-325. oll'ences conunitted by an agent in another state, § 317, pp. 325-328. Mr. Wharton's view of international crimes, § 318, p. 328. • as to acts jiartly coimuitted in dilfcrent counties, § 319, p. 329. ofl'ences made of dist.inct acts in dilfei'ent loealitit's, § 320, p. 329. continuing crimes, § 320, pp. .331-333. foreigners committing offences, § 321, pp. 333-335. extradition, § 322, pp. 333-339. See Common L.\w ; Ciuminai, Law. CiUMINAL LAW. venue in state where a crime is committetl, § 113, p. 106. See Co.M.Mox Law; Ci:i.mes. DATE. of summons is the date of the commencement of suit, § 83^ p. 72. Se(! Pai{tiks. DAY IN conrr. to be afforded, § 82, p. 69. G80 INDEX. DEFEAT OF JURISDICTIOX. See JuiiisDicTioN ; Statutes. DEFINITION. of jurisdiction, §§ 1, 3, p. 2. DEMUliRER. lor want Oi juristliction, § 64. pp. 44, 45. DISCRETION. of government departments not interfered with, i 47, p. 33. See Mandamus. of courts. See Incidentai, Jurisdiction. DISQUALIFICATION. See Attachment; Courts of Fiioijate ; Judges. DISTINCTION. between ministerial and judicial acts, § 5, p. 3. Soe jNIandamus. l)etween different liinds of jurisdiction, ^ 7 et seq., p. 7 et seq. DIVORCE. See Common Law. DOMICILE. See Attacilmknt ; Courts op Prouate. DOUBT AND BELIEF. See Amount. DOWER. See Court of Probate. ECCLESIASTICAL COURTS, See Common L.^.w. ECCLE.SIASTICAL PROPERTY. See Churches and Vouunt.vtjy So- i:iETiES ; Co.M.MoN Law. EMINENT DOMAIN. See chapter headings on page 4(i:'. EQUITY. when will not interpo,se where there is a remedy at law, j 215, p. 223 and note. / clearing title, ^ 215, 235, p. 224, note, 248. recovering possession, § 215. p. 224, note. title to Jjersonal property. § 215, p. 224, note. ownership, possession, and dedication, § 215, p. 224, note. relation of mortgagor and mortgagee, § 215, p. 225, note. administration of estates,. § 215, p. 225, note. construing a will, § 215, p. 225, note. right of adopted heir. § 215, p. 225, note. compelling duty of administrator, ^ 215, p. 225, note. settlement among distributees, ^ 215, p. 225, note. sales of lands and directing proceeds, § 215, p. 225, note. (See below.) directing proceeds of crops raised by administrator, § 215, p. 225, note. defects of statutory remedies, § 215, p. 225, note. failure to execute instruments, i 215, p. 225, note. voluntary promise or unexecuie I gift, § 215, p. 225, note. matters of account, ^ 215, pp. 225, note, 226. (See below— P.\i!tnki:- SIIIP.) misappropriation of funds b}' officers of corporation, ^ 215, p. 225, note, failure to issue corporate stocks, § 215, p. 225, note, commissions, § 215, p. 225, note, mechanic's lien, ^ 215, p. 225, note, apportioning encumbrances, § 215, p. 226, note, labor performed for trust estates, § 215, p. 226, note. (See below.) loss of instrument under seal, § 215, p. 226, note, courts of law exercising etpiiiahle jurisdiction, j 216, p. 226. concurrent jurisdiction of law and equity, § 216, p. 226. nuisance, ^ 216, pp. 226, 227, note, mulliiilicity jf suits, § 217, p 227. when equity will interfere though inainl naus would lie, { 217, p. 227. INDEX. 687 EQUITY— Cont inued. does not revise or correct legal proceedings, § 218, p. 230. enjoining suits at law, § 218, p. 231. will not supply defences or counteract neglect, § 219, p. 231. setting aside legal proceedings, § 220, pp. 232, 233. will not set legal proceedings aside on the ground of mere error, § 229, p. 234 supervising proceedings of a justice of the peace, j 222, p. 234. dire(!t action of payment of money, ^ 223, p. 234. legal and eciuitalile grounds of relief, § 223, p. 234. penalties and forfeitures, § 224, p. 23'). validity of elections, § 225, p. 23.5. extent or mode of legal right, § 22G, p. 235. Avill retain cause for full justice, § 227, p. 235. equitable conversion. § 229, p. 23t). discretion — estabiishecl rules, § 229, p. 2K!. exjilanation of equity maxims, § 229, pp. 236, 237 nature of remedies in equity, § 229, p. 237. trusts, ^ 230, p. 237. (See above.) trust deeds, § 230, p. 239. frauds, § 231, p. 239. cancellalion and rescission — examples, § 232, pp. 240-243. reformation, § 233. pp. 243-240. specific performance, § 2.34, pp. 24(J, 247. partnership, v) 23(), p. 248. (See above — Account.) suretyship, ^ 2.'57, p. 248. ne exeat writs, § 238, p. 24s. See Ne Exe.\t. discovery, § 239, p. 249. power to sell lands. See chapter headings on page fiOS. preventive jurisdiction — bills of peace — injunctions, § 250, p. 249. will not control the administration of public funds, § 49, p. 36. See .lujusojc^riox ; Exclusive and Concurrent Juhisdic- TioN ; Parties. ESTATES. See Court.s of Pkokatk ; Equity. ETY.MOLOGY. of the word " jurisdiction," § 1, p, 1. EXCLUSIVE AND CONCUUKENT .JURISDICTION. in general, § 154, p. 148. concurr(;nce between law and equity courts, § 155, p. 148. See Equitv. proceedings mav be maialaine.l at law and in equitv at the same time, § 155. "p. 148. coui't first acquiring possession of a cause letains it tliroughout, H56, p. 149. See Jurisdiction; Couii'rs op PRoriATE. EXECUTIVE DEPARTMENT. See Constitution au Law ; Mandamus. EXECUTOR. See Attacu.ment; Courts oe Proh.vte. EXEMPLIFICATIONS. See Common Law. FEDERAL JURISDICTION. over crimes in navy yards, § 113, p. 100. over high seas — what are high seas, i 113, p. 107. S(!e Admihauty : Cduiits: H a be.vr Corpus. FOIiElON CORPORATIONS. suit against by non-residents, 89, p. 80. See Parties. FOREIGNERS. See Admiisai.ty ; Crimes. FOREIGN NATIONS. See AoMiiiAi/rv; Courts. 638 INDEX. FORFEITURES. See Equity. FRAUD. See Coubts of Puobvte; Equity; Parties. GARNISHMENT. what may be reached by oarnisliment in general, § 549, p. 528. general rule governing, 4 549, p. 529, note. Louisiana case, § 550, p. 530. property in the hands of officers, or agents, or bailees, j 549, p. 530, note, municipalities, i 549, p. 530, note, private corporations, p. 531, note, silariesand wages, p. 531, note, estates, p. 532. note, promissory notes, etc., p. 532, note, bank clie(;ks, p. 5.32, note, settlements, p. 532, note, balance on subscriptions, p. 5-33, note, mortgages, p. 533, note, judgment debts, p. 533, note, future and contingent liabilities, p. 533, note. partnerships, etc., p. 534, note, husband and wife, p. 534, note, assignments, p. 534, note. a.ssignment of partnership for creditors, p. 535. note, assignment of wages, p. 535, note, plaintiff as garnishee not allowed, p. 535, note, exemptions, p. 535. note. res adjudicata, p. 53(j, note, venue, p. 536, note, purcliaser from one selling goods to defraud, and notes given to a third person, « 551, p. 536. assignment of promissory note before due, ^ 552, p. 537. joint debts from trustees. \^ 553, p. 537 money in the hands of a court or officer, § 554, p. 537. money in the hands of an attorney, §^ 554. 562, pp. 538, 544. money in the hands of school treasurers, § 554, p. 538. chancery trustee. ^ 554, p. 538. judgment debloi-, ^ 554, p. 5.38. fees due a juror, j 554, p. 539. agent, § 555, p. 539. holder of choses in action, § 555, p. 539. executors and administrators, ^ 556, p. 5.39. partneiships, * 557, p. 540. municipalities. § 558, p. 541. private corporations, \ 559, p. 541. foreign corporations, H 559, 560, pp. 542, 544. mone}" in hands of railroad station agent, etc., $ 560, p. 542. mone}' in hands of cashier of a bank, § 560, p. 544. money deposited with a mercantile firm, ^ 561, p. .544. note executed to wife to defraud creditors, ^ 563, p. 545. salary or wages of policemen. ^ 564, p. 545. when wages not on a broken contract, ^ 565, p. 545. money held as indemnity, ^ 566, p. 546. claims under an insurance policy, § 567, p. 546. guests at hotels, § 568, p. .546. creditor of fraudulent mortgagor or grantee, § 569, p. 546. fraudulent assignment of contract, § 569, p. 546. surplus under trust deed, ^ 569, p. 546. consignee of goods who makes advances, f 570, p. 547. spendthrift's guardian, ^ 571, p. .547. set-offs on account of taxes, § 572, p. 547. INDEX. 639 -'[ENT— Continued. military bounties in liands of officers, ^ 573, p. 547. double garnishment — remedy for, § 574, p. 547. effect of service of process, § 575, p. 547 exemption personal to garnishee, § 57tJ, p. 54S. exemption of negotialtle piper, § 57(i, p. 54s. pensions. § 57(). p. 54^, Ava"-cs pava'.ilc by ins;alments so as to keep \T'ilhiii cxcmi)lion, § 57(1, ^ p. 54<. GIFT. See E(iU IT V. GOVEUN^IEXT. See Claims. § 143, p. 132, note. may excuse infrac'ion, § 143. p. 132, note. supreme court ma_v appoint janitor, § 143, p. 132, note. may regulate sittirigs, § 143, p. 132. note. communication between courts, ^ 143, p. 132, note. control of process, § 144, p. 133. rule — compelling performance of immaterial acts, § 143, p. 132. See chapter headings on page 13U; Churches and Volun- TAUY Societies ; Supplemental Puoceedings. INDIANS as parties, ^ 94, p. x2. INDICTMENT. when discharged by repeal of statute, s^ 73, p. 63. venue as to, § 120, p. 117. See Chimes; Ciu.minal Law; Habeas Corpus. INJL XCTION. See Equity; Taxation. of process, ^ 1.56, p. 150. of proceedings at law, § 156, p. 150. IN REM PKOCEEDINGS. See ADMiR.^.LTy; Attachment; Parties^ INSOLVENCY. See Atta('Hment; Bankruptcy. INSTRUMENTS. See Equity. INSURANCE. See Admiralty. INTER-STATE CITIZENSHIP. right of non-residents to sue non-residents in state courts, * 114, p^ 108. INTER-STATE .JURISDICTION. See Jurisdiction. JUDGES. See Courts op Pijob.^te. purity of, § 163, p. 157. objection of age as a qualification, j 164, p. 15;*. disqualification cannot be raised by party to suit, but must be raised in direct proceeding, § 164, p. 15s. validit}- of acts of disqualified judge, § 164, p. 158. See Attaciimext. special judge — authority maybe questioned by party, § 164, p. 159. residence — as qualification, \ 16.5, p. 159. must be free from utficial or personal bias, j 166. p. 159. holding other oftice, § 166, p. 160. magistrate — not disqualified by liaving been a witness or drawn a lease, i 167, p. 160. mere partisan feeling will not disqualify, § 168. p. 160. judge cannot act as counsel in his own court, or decide a cause in which he has been coun.sel — extent of the rule — consent of par- ties, § 169, p. 161. relationship as a disqualification, j 170, p. 162. pecuniary interest as a disqualification, i 171. p. 163. ajjpointment of judge to act in-^tead of disqualified judge, j 171, p. 163. waiver of objection of pecuniary interest, j 171, pp. 164, 165. burden of prof)f to show incapacity, § 171, p. 165. summary of the matters of disqualification, § 172, p. 166. INDEX. 641 JUDGES— Continued substitution whore there is no otHcial disqualification, § 174, p. 168. power of substitution must be strictly pursued, ^ 174, p. 109. in Louisiana substitute must be a practitioner, § 175, p. 109, note, not lial)lc for damages proceeding from mistake, j 175, p. 109. liability for misconduct in ofiice, § 176, p. 172. autliuiity over attorneys, § 177, p. 173. See Incidrntal, Juiusdictiok. JUDGMENT. not personal as to corporations in proceedings in rem, § SO, p. 80. may be entered nunc pro tunc, § 143, p. 132, note. JUDICIAL DEPARTMEXT, to determine the constitutionality of statutes, § 6, p. 3. JUDICIAL AND MINISTERIAL ACTS. distinguished, § 5, p. 3. See M.\XD.\Mus. JUDICIAL SALES. of land inforeian state, 4 1^6, p. 112. power of equity in. See chapter headings, p. 609. JURISDICTION. what it is, §§ 1, 3, pp. 1,2. See P.MiTiEs. what gives, § 4, p. 2. plaintiffs right, p. 3, note. distinction lietween jurisdictional and ministerial acts, ^ 5, p. 3. distinction as to kinds of, ^ 1 et seq., p. 7 at seq. r.ecessar^^ to giving any opinion, § 13, p. 10. incidental, p. 9, note. See CouKTs ; Habeas Cohpus ; Incidkntat, Juiusdic riox. transcended, § 17, p. 12. subsequent investiture of jurisdiction — effect on pending suits takea Without juiisdictliiii, § l.s, p. 12. of superior court not assaihd in collateral proceeding, § 32, p. 26. (See below.) ex'ceptions to tliis rule. § 33, p. 27. general rule as to collateral inquiries concerning jurisdiclionj § 57, p. 41. when protected by the doctrine of stare dectsin, ^ 19, p. 12. general and limited, § 26, p. 22 See Coinrrs; I'hesumptions. axioms as to declarations of, § 50, p. 41. how decided, § 56, p. 41. Jiow collaterally inquired of, § 57, p. 41. (See above.) of undetermined cases not inquired of, ^ 60, p. 44. determination of inferior court tJiereon, ^ 01, p. 44. courts bound to inquire as to their own, § 02, p. 44. objection as to subject-matter — when taken, ^ 03, p. 44. how objection taken, ^ 04, p. 44. not conferred as to subject-matter by consent, <} 66, p. 47. as to a criminal case not by consent, $ 60, p. 47. or as to a cori)oration, ^ 66, p. 47. sources of, (1,) common law, (2,) constitutions, (3,) statutes, ^ 07, p. 52. new offence designated, and special tribunal having exclusive cog- nizance thereof, § 68, p. 52. enlargement of, § '6><, p. 53. See Co.NSTiTUTioNAL Law; Statutes. ousted by bankruptcy, § 76, p. 64. ousted by certifying cause, ^ 77, p. 64. not by general agreement of arbitration, § 78, p. 64. v.l— 41 642 INDEX. JU1{18])ICTI0N— CGntimied. nic'tliod of proeeecliiig where judge is disqualified, § 173, p. 167. not ousted l)y subsequent lact in a cause, § 7r>, pp. 65, 67. not ousted by incidental question of title, j 79, p. 67. exception as to subsef^uent fact in the case of attachment. » 79. p. CS. not ousted by subsequent recovery of a lunatic, § 81, p. 68. not l)y giving concurrent jurisdiction, i SO, p. 6i^. of person may be conferred by consent, f >!. p. 7-1. See ApPE.\Ti.\NCE. dependent on residence, § 87, p. 76. general, of state, § 113, p. 105. as to suits between non-residents, § 114, p. lOS. service — appearance in case of non-residents, § 11-1, p. 109 of torts committed abroad, § 115, p. 110. oflicial misconduct of non-resident, j 115, p. 112. real action as to foreign lands, § 116, p. 112. sale of lands in foreign state, § 116, p. 112. in equity depends on residence, § 90, p. 80. in suit for partition does not confer jurisdiction to contest will. § 117, p. 113. place of payment controls jurisdiction, § 118, p. 116. provisional courts — ousting, ^ 131, p. 125. of military courts. See chapter headings on page 571. See Amount ; Boundaries; Constititionai. Law; Incidental Jurisdiction, and Specl^l, Topics. JUKY. constitutional right of trial by. cannot be indirectly taken away tiy legislation, as by transference to a court without power ti> eni- . panel a jury, § 68, p. 54. an equity court recognized by a constitution cannot be compelled to submit equitable facts to a jury, § 68, p. 54. JUSTICK OF THE PEACE. may determine the constitutionality of a statute, § 6, p. 5. jurisdiction wholly statutory, § 65, p. 46. See Common Law; Equity; and chapter headings on page 386. JUSTIFKJATIOX OF OFFICEK. in taking goods, § 44, p. 31. See Judges. LAW MEUCHANT. See Common Law. LEGISLATURE. may change the principles of presumptions as to jurisdiction, i 45, p. may call for opinions of the supreme court on important questions of law, under restrictions, p. 34, note, discretion of in regard to public faith, i 49, p. 36. See chapter on Constitution at. Limitations; and see Stat- utes. LEVY. does not confer jurisdiction. ^^ 119. p. 116. LEX LOCI. as U) c(jntracts, § 114, p. 110. contracts void where made will not be enforced, § 114, p. 110, note, as to torts, « 114, p. 110. as to sale of lands, § 116, p. 112. See Special Topics. LIENS. See Attachment, ' INDEX. 043 LIMITATIONS. of superior jurisdiction, § 99, p. 93. See Amount; Constitutionai> Limit -VTrox;* and Special. Tones. by territory, § 119, p. 116. See CouBTs op Probvte; Constitdtionatj Law. LODGES. See Chuuches and Voluntauv Societies. MAGISTRATE. See Judges. MANDAMUS. does not lie to compel a speaker to send a 1)111 to the s(^uatc for action thereon, § 47, p. 33. as to executive action — discretion not interfered with, §i 47, 4s, pp. 34-3(J. may compel a secretary of state to cancel corporation license, p. 34, note t- discretion of legislature as to pul)lic faith, § 49. p. .ifj. does not lie to compel a comptroller of the state to countersiun and register railroad bonds, § 49, p. 37. nor to compel secretary of state to promulgate a law, v '>1, P- 38. . abated by repeal of statute, § 69, p. 5{j. nature of the writ, § 472, p. 472. and of the right to he enforced, § 472, pp. 472, 473, note. and of the iniercst therein of applicant, j 472, pp. 472, note, 473. sound discretion in issuing writ, § 473, p. 473. present legal duty, § 472, p. 473, note, successor in otlice, § 472, p. 473, note, where performance impossible, § 472, p. 473, note, legal as well as physical impossiliility, § 472, p. 474, note, matters of discretion, § 472, p. 474, note, only ministerial acts can l)e compelled, § 472, p. 47'), note. unliquidated demands, § 472. p. 475, note. conditional duty, § 472, p. 475, note, when courts have discretion in issuing mdiiduui us, i 472. p. 47.'>. and noto((l.) the writ a writ of right in some states and the Initnl Stales courts, § 472, p. 475. where there are other remedies, ?^^ 474, 47. 479, 4su, woXv {>/.) official discretion cannot be (;oereed l)y niniidiiiri.ux, <^ 479, p. 480. not supply the place of an appeal or uril of eiTor, § 4X0. p. 480. illegal acts not compelled nor impossible legally. 'J 4^^!, p, 4^2. what courts may issue writs, l^ 4.'"2. p. 4s2. to try whether officer posses.scs power to perform an act, ^^ 4^3, p. 482. writissued by ap])ellate couH, ^■^>^A, ]). 4S2. not mere matters of contract enforced, § 4b5, p. 4^3. state executive officers, i 4Mj, p. 4s3. extradition, § 4s(;, p. 4s4. , state treasurer, § 4^7, p. 4s5. to compel certilieate of election froin seerclary of state. >^ 488, p. 4S(). wi'it issued to inferior ('(jurt. ^ 489. p. 4s(;. railroad company not compelled by iiitfn(l,'iiinif< toconileiuii land, ^ 490, p. 4s7. payment of a professor in state university, § 491, p. 48:5. where a man (iiuiun can operate, § 492, ]). 489. 644 INDEX. MAXDAM US— Continued. to compel payment of a school teacher, § 4!i.'!, p. 489. to compel levy of tax to pay corporation judgment, (■ 47G, p. 478, note. issuing bonds for public improvements, § 494, p. 480. to compel assessment of taxes, § 494, p. 491. United Slates courts, and state courts and officers, § 494, p. 491. to compel an estimate of amount for carrving on puljlic schools, ^ 494, p. 492. auditing claims to military bounty, {494, p. 492. payment of officer's salary, § 494, p. 492. to compel a credit, § 494, p. 493. to is.sue county warrants, § 494, p. 493. refunding illegal taxes, § 494, p. 493. only present duty enforced, not future, § 494, p. 493. money payable on warrant — conditional, $ 494, p. 493. not control discretion of city council, § 494, p. 494. may compel mayor and aldermen to deteimine ferry rates according to statute, M95, p. 4!I4. to compel railroad company to grade track or deliver grain, § 490, p. 494. when to compel life-pass on subscription stock, § 49G, p. 495. church membership or occupancy of pulpit not, § 497, pp. 495, 49C. enforcing a bid on public contracts, § 4'J8, p. 496. commanding a meeting and election by city council, ^ 499, p. 496. compelling canvass of votes at election, § 49!i, p. 4!)7. officer retiring fron\ office while proceedings pending, j 5UU, p. 497. not try right to public office, § oul, p. 497. demand for keys, etc., enforced, § 502, p. 497. not tr\- location of highway, § 503, p. 498. to compel public seal, § 504, p. 498. to compel execution of deed by officer, § 505, p. 498. to compel signing of contract, § 505, p. 499. to compel admission of colored child into public school, { 506, p. 499. to compel right of member to sit on school committee, § 506, p. 499. to compel a .survey, (not,) § 507, p. 499. -amenability of inferior courts — summary, § 508, pp. 499, 500. to strike off a jury list one not liable to serve, ^ 508, p. 500. one court not compel obedience for another, § 508, p. 500. proceedings on return to alternative writ, § 509, p. 500. alternative writ amendal)le, § 509, p. 500. who may be a relator, § 510, p. 500. MARTIAL LAW. See Military Law. MECHANICS LIEX. See Equity. MILITARY COURTS. jurisdictional facts must appear, § 42, p. 30. See chapter heaiiings on page 571. MILITARY LAW. resistance to enrollment, § 600, p. 576. soliciting one to go abroad to enlist, § 600, p. 577. enticing minor into the army, § 600, p. 577. desertion, § 601, p. 577. court martial of officer, § 602, p. 577. spies, ^ 603, p. 577. mutiny or insubordination, § 604, p. 577. general definition, § 605, p. 577. distinction between martial and military law, § 605, p. 578. MINORS. See Habeas Cokpu.>; Military Law; Parties. MISDEMEANORS. See Common Law; Crimi:;al L.vw. MORTGAGE. See Admiralty ; Equity. I INDEX. 045 JLOTIOK to dismiss for want of jurisdiction, § 64, p. 44. :^ATiONAL BANK. See Attaciimkxt. NATIONAL BOUNDAKY. an excln-iively political question, § 54, p. 39. NATUIIALIZATION. See chapter headings on page 447. NE EXEAT. writ may be aV)olished by statute, §. 68, p. 5.5. See Equitv, and chapter headings on page 502. NON-RESIDENTS. may sue non-residents in state courts, § 114, p. 108. See Attachment; Ciumes; Pauties; Torts. NOTICE. sufficiency of, not collaterally inquired into, § 88, p. 77. of publication — burden of proof in impeaching, § 88, p. 77. of change of venue, § 12S, p. 124. of village ordinance, what, § 82, p. 72. See Attachment; Pauties; Service. NUISANCE. See Equity. NUNC PRO TUNC. See Judgment. OBITER DICTA. not regarded as declarations of the laAV, § 2, p. 2. OBJECTION. to jurisdiction as to subject-matter — wlien taken, § 63, p. 44. how taken, j 64, p. 44. not waived by delay, § 565, pp. 46, 49, note, 50. • OFFICE. courts mav take cognizance of a jicrsonal contest fop a slate dfRce, § 52, p."3S. OFFICE B. not protected against an action for an escape by a (lisch;;rge on habeas corpus by a court witliout jurisdi.'tiou, riKALTT; Courts op Pkobate; EquiTZ. STARE DECISIS. when it protects jurisdiction, § 19, p. 12. STATE. set-off may be allowed in suit by, § 91, p. 82. when, may be sued, § 91, p. S-.' general jurisdiction of office. See Office. See CitiMES. STATUTES. constllulionalily of, ^ 6, ;'..'), pp. 3, 39. mandatory and directory, j 6s, p. ,06. effect of a repeal on juri.sdiction, § 69, p. 56. enlarging autliorily — etTc(;t on jiending suits, f 70. p. ."JS. giving power to coiniiiou-law courts as to distributions, i 71, p. od. principle of strict cousuuclion, § 72, p. r)9. ousting jurisdiction of superior courts, ^ 73, p. 61. creating new courts — effect in pending ciuses, § 74, p. 63. repeal of statute crcMting offence discharges indictment, j Iri, p. 63. may abolish ne exedt writs, § Q'f^, p. 55. whether retroactive on ])ending proceedings, ^ 83, p. 73. As to Statutorv Jurisdiction, see §§ 60, 65, 67, 70, 71, pp. 40, 52, 55, 58, r,9. See Attach.vient ; Eiiirrv; Ciu.mes. INDEX. 649 SUIT. See Date. SUMMARY PROCEEDINGS. scope of, j 161, p. 155. autliority luust be strict!}^ pursued, § 162, p. 155. SUM^MOXS. See Pakties ; Seuvice. SUPPLEMENTARY PROCEEDINGS. nature of and when allowable, § 14G, p. 131. SURETYSHIP. See Equity. TAXATION. mnndawus to compel refunding:, § -1:94, p. 493. See M.VNUAMDS, and chapter lieadings on page 580. TERMS OF COURT. must be held as prescribed by statute, § l.'i2, p. 126. what is a conipliauce, § 133, "p. 127. l^resuniption of regularity, § 133, p. 127. adjournments — p.csuniplion ol, § 133, p. 127. continuation of term, § 133, p. 127, note. commencement of term, § 133, p. 127. special teiins, ^ 133, p. 127. effect of the close of a term, « r'3, p. 127. See Couirrs of Pkoiiate. TITLE. inciilental question of, does not oust juiisdiction. § 79, p. G7. See Attach.ment ; Equity. TORTS. committed out of the slate by non-residents, jj bl, 115, pp. 76, 110. See AoMiKAi/rY. TRESPASS. venue in, § 117, p. 114. TRUST DEEDS. See Equity. TRUSTS. See Admiualty; Courts of Pkobate; Equity. UNITED STATES COURTS. and state courts, § G8, p. 53. See AD.MinAUTY; Co.mmon Law. VACATION. See Teisms op Couht. VALUE. Sec Amount. VENUE. where a county is divided, § 68, p. 53. ei'roiu'ous, cured by consent, ^ 86, pp. 75, 7G. moaning of leriu, § 112, p. 10.5. general jurisdictiDii of slate, ^ 113, p. 105. suits beiween non-residents, § 114, j). lOS. torts C()mniitle- 1 ■"^WSt ITV/"^. ]C< •'^Mi 1V,]J?F«' 1 U»^ ^ ^^p ^-1 / 1 '^ 1 ^r' Jtt ^^KJ In rrr^ ^VER% L,u.yrt>''iuLL£,)- ZJ^ ir LAiiiUia' ill ■ ;:'!';;«;;;i;i)il!(Uii^:i:'l