C3:
COURT, practice. A court is an incorporeal political being,
which requires for its existence, the presence of the judges, or
a competent number of them, and a clerk or prothonotary, at the
time during which, and at the place where it is by law authorized
to be held; and the performance of some public act, indicative
of a design to perform the functions of a court.
2. In another sense, the judges, clerk, or prothonotary,
counsellors and ministerial officers, are said to constitute the
court.
3. According to Lord, Coke, a court is a place where justice is
judicially administered. Co. Litt. 58, a.
4. The judges, when duly convened, are also called the court.
Vide 6 Vin. Ab. 484; Wheat . Dig. 127; Merl. Rep. h. t.; 3
Com. Dig. 300; 8 Id. 386; Dane's Ab. Index, h. t.; Bouv. Inst.
Index, h. t.
5. It sometimes happens that the judges composing a court are
equally divided on questions discussed before them. It has been
decided, that when such is the case on an appeal or writ of
error, the judgment or decree is affirmed. 10 Wheat. 66; 11 Id.
59. If it occurs on a motion in arrest of judgment, a judgment is
to be entered on the verdict. 2 Dall. Rep. 388. If on a motion
for a new trial, the motion is rejected. 6 Wheat. 542. If on a
motion to enter judgment on a verdict, the judgment is entered. 6
Binn. 100. In England, if the house of lords be equally divided
on a writ of error, the judgment of the court below is affirmed.
1 Arch. Pr. 235. So in Cam. Scacc. 1 Arch. Pr. 240. But in error
coram nobis, no judgment can be given if the judges are equally
divided, except by consent. 1 Arch. Pr. 246. When the judges are
equally divided on the admission of testimony, it cannot be
received. But see 3 Yeates, 171. Also, 2 Bin. 173; 3 Bin. 113 4
Bin. 157; 1 Johns. Rep. 118 4 Wash. C. C. Rep. 332, 3. See
Division of Opinion.
6. Courts are of various kinds. When considered as to their
powers, they are of record and not of record; Bac. Ab. Courts,
D; when compared. to each other, they are supreme, superior, and
inferior, Id.; when examined as to their original jurisdiction,
they are civil or criminal; when viewed as to their territorial
jurisdiction, they are central or local; when divided as to
their object, they are courts of law, courts of equity, courts
martial, admiralty courts, and ecclesiastical courts. They are
also courts of original jurisdiction, courts of error, and courts
of appeal. Vide Open Court.
7. Courts of record cannot be deprived of their jurisdiction
except by express negative words. 9 Serg. & R. 298; 3 Yeates,
479 2 Burr. 1042 1 Wm. Bl. Rep. 285. And such a court is the
court of common pleas in Pennsylvania. 6 Serg. & R. 246.
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8. Courts of equity are not, in general, courts of record.
Their decrees touch the person, not lands. or goods. 3 Caines,
36. Yet, as to personalty, their decrees are equal to a judgment;
2. Madd. Chan. 355; 2 Salk., 507; 1 Ver. 214; 3 Caines, 35;
and have preference according to priority. 3 P. Wms. 401 n.;
Cas. Temp. Talb. 217; 4 Bro. P. C. 287; 4 Johns. Chan. Cas.
638. They are also conclusive between the parties. 6 Wheat. 109.
Assumpsit will lie on a decree of a foreign court of chancery for
a sum certain; 1 Campb. Rep. 253, per Lord Kenyon; but not for
a sum not ascertained. 3 Caines, 37, (n.) In Pennsylvania, an
action at law will lie on a decree of a court of chancery, but
the pleas nil debet and nultiel record cannot be pleaded in such
an action. 9 Serg. & R. 258.
COURT CHRISTIAN. An ecclesiastical judicature, known in
England, so called from its handling matters of an ecclesiastical
or religious nature. 2 Inst. 488. Formerly the jurisdiction of
these courts was not thus Iimited. The emperor Theodosius
promulgated a law that all suits (lites) and forensic
controversies should be remitted to the judgment of the church,
if either of the litigating parties should require it. Fr. Duaren
De Sac. Minist. Eccl. lib. 1, c. 2. This law was renewed and
confirmed by Charlemagne.
COURT OF ARCHES , eccl. law. The most ancient consistory court
belonging to the archbishop of Canterbury for the trial of
spiritual causes. It is so called, because it was anciently held
in the church of Saint Mary le bow; which church had that
appellation from its steeple, which was raised at the top with
stone pillars, in the manner of an arch or bow. Termes de la Ley.
COURT OF ADMIRALTY. A court having jurisdiction of all maritime
causes. Vide Admiralty; Courts of the United States; Instance
Courts; Prize Court; 2 Chit. Pr. 508 to 538.
COURT OF AUDIENCE, Eng. eccl. law. The name of a court kept by
the archbishop in his palace, in which are transacted matters of
form only; as confirmation of bishops, elections, consecrations,
and the like.
COURT OF COMMON PLEAS. The name of an English court which was
established on the breaking up of the aula regis, for the
determination of pleas merely civil. It was at first ambulatory,
but was afterwards located. This jurisdiction is founded on
original write issuing out of chancery, in the cases of common
persons. But when an attorney or person belonging to the court,
is plaintiff, he sues by writs, of privilege, and is sued by
bill, which is in the nature of a petition; both which originate
in the common pleas. See Bench; Banc.
2. There are courts in most of the states of the United States
which bear the name of common pleas; they have various powers
and jurisdictions.
COURT OF CONSCIENCE, Eng. law. The name of a court in London.
It has equity jurisdiction in certain cases. The reader is
referred to Bac. Ab. Courts in London, 2.
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COURT OF CONVOCATION, eccles. law. The name of an English
ecclesiastical court. It is composed of every bishop, dean, and
archdeacon, a proctor for the chapter, and two proctors for the
clergy of each diocese in the province of Canterbury, for the
province of York, there are two proctors for each archdeaconry.
2. This assembly meets at the time appointed in the king's
writ, and constitute an ecclesiastical parliament. The archbishop
and his suffragans, as his peers, are sitting together, and
composing one house, called the upper house of convocation the
deans, archdeacons, and a proctor for the chapter, and two
proctors for the clergy, the lower house. In this house a
prolocutor, performing the duty of a president, is elected.
8. The jurisdiction of this tribunal extends to matters of
heresy, schisms, and other mere spiritual or ecclesiastical
causes. Bac. Ab. Ecclesiastical Courts, A 1.
COURT OF EXCHEQUER, Eng. law. A court of record anciently
established for the trial of all matters relating to the revenue
of the crown. Bac. Ab. h. t.
COURT OF FACULTIES, Eng. eccl. law. The name of a court which
belongs to the archbishop, in which his officer, called magister
ad facultates, grants dispensations to marry, to eat flesh on
days prohibited, or to ordain a deacon under age, and the like. 4
Inst. 337.
COURT, INSTANCE. One of the branches of the English admiralty
is called an instance court. Vide Instance Court.
COURT OF INQUIRY. A court constituted by authority of the
articles of war, invested with the power to examine into the
nature of any transaction, accusation, or imputation against any
officer or soldier; the said court shall consist. of one or more
officers, not exceeding three, and a judge advocate,
or other suitable person, as a recorder, to reduce the
proceedings and evidencee to writing, all of whom shall be sworn
to the performance of their duty. Art. 91. Gord. Dig. Laws U. S.,
art. 3558 to 3560.
COURT OF KING'S BENCH. The name of the supreme court of law in
England. Vide King's Bench.
COURT MARTIAL. A court authorized by the articles of war, for
the trial of all offenders in the army or navy, for military
offences. Article 64, directs that general courts martial may
consist of any number of commissioned officers, from five to
thirteen, inclusively; but they shall not consist of less than
thirteen, where the number can be convened, without manifest
injury to the service.
2. The decision of the commanding officer who appoints the
court, as to the number that can be convened without injury to
the service, is conclusive. 12 Wheat. R. 19. Such a court has not
jurisdiction over a citizen of the United States not employed in
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military service 12 John. R. 257. It has merely a limited
jurisdiction, and to render its jurisdiction valid, it must
appear to have acted within such jurisdiction. 3 S. & R. 590 11
Pick. R. 442; 19 John. R. 7; 1 Rawle, R. 143.
3. A court martial must have jurisdiction over the subject
matter of inquiry, and over the person for a want of these will
render its judgment null, and the members of the court and the
officers who execute its sentence, trespassers. 3 Cranch, 331.
See 5 Wheat. 1; 12 Wheat. 19; 1 Brock. 324. Vide Gord. Dig.
Laws U. S., art. 3331 to 3357; 2 Story,. L. U. S. 1000; and
also the Treatises of Adye, Delafon, Hough, J. Kennedy, M. V.
Kennedy, McArthur, McNaghten, Simmons and Tyler on Courts
Martial; and 19 John. R, 7; 12 John. R. 257; 20 John. R. 343;
5 Wheat. R. 1; 1 U. S. Dig. tit. Courts, V.
COURT OF PECULIARS, Eng. eccl. law. The name of a court, which
is a branch of, and annexed to, the. court of arches.
2. It has jurisdiction over all those parishes dispersed
through the province of Canterbury, in the midst of other
dioceses. In the other peculiars, the jurisdiction is exercised
by commissaries. 1 Phill. R. 202, n.
3. There are three sorts of peculiars 1. Royal peculiars. 3
Phill. R. 245. 2. The second sort are those in which the bishop
has no concurrent jurisdiction, and are exempt from his
visitation. 3. The third are subject to the bishop's visitation,
and liable to his superintendence and jurisdiction. 3 Phill. R.
245; Skinn. R. 589.
COURT PREROGATIVE. Vide Prerogative Court.
COURT, PRIZE. One of the branches of the English admiralty, is
called a prize court. Vide Prize Court.
COURT OF RECORD. At common law, any jurisdiction which has the
power to fine and imprison, is a court of record. Salk. 200;
Bac. Ab. Fines and Amercements, A. And courts which do not
possess this power are not courts of record. See Court.
2. The act of congress, to establish an uniform rule of
naturalization, &c., approved April 14, 1802, enacts, that for
the purpose of admitting aliens to become citizens, that every
court of record in any individual state, having common law
jurisdiction and a seal, and a clerk or prothonotary, shall be
considered as a district court within. the meaning of this act.
COURT, SUPREME. Supreme court is the name of a court having
jurisdiction over all other courts Vide Courts of the United
States.
COURTS OF THE UNITED STATES. The judiciary of the United States
is established by virtue of the following provisions, contained
in the third article of the constitution, namely:
2. - "§1. The judicial power of the United States shall be
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vested in one supreme court, and in such inferior courts as
congress may, from time to time, ordain and establish. The
judges, both of the supreme and inferior courts, shall hold their
offices during good behaviour, and shall, at stated times,
receive for their services a compensation, which shall not be
diminished during their continuance in office.
3.- "§2. (I.) The judicial power shall extend to all cases in
law and equity arising under this constitution, the laws of the
United States, and treaties made, or which shall be made, under
their authority; to all cases affecting ambassadors, other
public ministers and consuls; to all cases of admiralty and
maritime jurisdiction; to controversies to which the United
States shall be a party to controversies between two or more
states, between a state and a citizen of another state, between
citizens of different states, between citizens of the same state
claiming lands under grants of different states, and between a
state, or the citizens thereof, and foreign states, citizens or
subjects.
4. - " (2.) In all cases affecting ambassadors, other public
ministers and consuls, and those in which a state shall be party,
the supreme court shall have original jurisdiction. In all the
other cases before mentioned, the supreme court shall have
appellate jurisdiction, both as to law and fact, with such
exceptions, and under such regulations, as congress shall make.
5. - " (3.) The trial of all crimes, except in cases of
impeachment, shall be by jury; and such trial shall be held in
the state where the said crime shall have been committed; but
when not committed within any state, the trial shall be at such
place or places as congress may by law have directed."
6. By the amendments to the constitution, the following
alteration has been made: "Art. 11. The judicial power of the
United States shall not be construed to extend to any suit in law
or equity, commence or prosecuted against one of the United
States by citizens of another state, or citizens or subjects of
any foreign state."
7. This subject will be considered by taking a view of, 1. The
central courts; an 2. The local courts.
Art. 1 The Central Courts of the United States.
8. The central courts of the United States are, the senate, for
the trial of impeachments, and the supreme court. The territorial
jurisdiction of these courts extends over the whole country.
1. Of the Senate of the United States.
9.- 1. The constitution of the United States, art. 1, §3,
provides that the senate shall have the sole power to try all
impeachments. When sitting for that purpose, the senate shall be
on oath or affirmation. When the president of the United States
is tried, the chief justice shall preside and no person shall be
convicted without the concurrence of two-thirds of the members
present.
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10. lt will be proper here to consider, 1. The organization of
this extraordinary court; and, 2. Its jurisdiction.
11. - §1. Its organization differs according as it has or, has
not the president of the United States to try. For the trial of
all impeachment of the president, the preseuce of the chief
justice is required. There must also be a sufficient number of
senators present to form a quorum. For the trial of all other
impeachments, it is sufficient if a quorum be present.
12. - §2. The jurisdiction of the senate, as a court for the
trial of impeachments, extends to the following officers, namely;
the president, vice-president, and all civil officers of the
United States, art. 2, §4, when they shall have been guilty of
treason, bribery, and other high crimes and misdemeanors. Id. The
constitution defines treason, art.
3, - §3, but recourse must be had to the common law for a
definition of bribery. Not having particularly mentioned what is
to be understood by " other high crimes and misdemeanors,"
resort, it is presumed, must be had to parliamentary practice.
and the common law, in order to ascertain what they are. Story,
Const. §795.
2. Of the Supreme Court.
13. The constitution of the United States directs that the
judicial power of the United States shall be vested in one
supreme court; and in such inferior courts as congress may, from
time to time, ordain and establish. It will be proper to
consider, 1st. Its organization; 2dly. Its Jurisdiction.
14. - §1. Of the organization of the supreme court. Under this
head will be considered, l. The appointment of the judges. 2. The
number necessary to form a quorum. 3. The time and place of
holding the court.
15. - 1. The judges of the supreme court are appointed by the
president, by and with the consent of the senate, Const. art. 2,
§2. They hold their office during good behaviour, and receive for
their services a compensation, which shall not be diminished
during their continuance in office. Const. art" 3, §1. They
consist of a chief justice and eight associate justices. Act of
March 3, 1837, §1.
16. - 2. Five judges are required to make a quorum, Act of
March 3, 1837, §1; but by the act of the 21st of January, 1829,
the judges attending on the day appointed for holding a session
of the court, although fewer than a quorum, at that time, four
have authority to adjourn the court from day to day, for twenty
days, after the time appointed for the commencement, of said
session, unless a quorum shall sooner attend; and the business
shall not be continued over till the next session of the court,
until the expiration of the said twenty days. By the same act,
if, after the judges shall have assembled, on any day less than a
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quorum shall assemble, the judge or judges. so assembling shall
have authority to adjourn the said court, from day to day, until
a quorum shall attend, and, when expedient and proper, may
adjourn the same without day.
17 - 3. The supreme court is holden at the city of Washington.
Act of April 29, 1 802. The session commences on the second
Monday of January, in each and every year. Act of May, 4, 1826.
The first Monday of August in each year is appointed as a return
day. Act of April 29, 1802. In case of a contagious sickness, the
chief justice or his senior associate may direct in what other
place the court shall be held, and the court shall accordingly be
ad to such place. Act of February 25, 1799, §7. The officers of
the court are a clerk, who is appointed by the court, a marshal,
appointed by the president, by and with the advice and the
consent of the senate, crier, and other inferior officers.
18. - §2. Of the jurisdiction of the supreme. court. The
jurisdiction of the supreme court is either civil or criminal.
19. - 1. The civil jurisdiction is either original or
appellate.
20. - (1.) The provisions of the constitution that relate to
the original jurisdiction of the supreme court, are contained in
the articles of the constitution already cited.
21. By the act of September 24th, 1789, §13, the supreme court
shall have exclusive jurisdiction of all controversies of civil
nature where a state is a party, except "between a state and it's
citizens; and except also, between a state and citizens of other
states or aliens, in which latter case it shall have original,
but not exclusive jurisdiction. And shall have, exclusively, all
such jurisdiction of suits, or proceedings against ambassadors or
other public ministers, or their domestics or domestic servants,
as a court of law can have or exercise consistently with the law
of nations. And original, but not exclusive jurisdiction of all
suits brought by ambassadors or other public ministers, or in
which a consul or vice-consul shall be a party. And the trial of
issues in fact, in the supreme court, in all actions at law,
against citizens of the United States, shall be by jury.
22. In consequence of the decision of the case of Chisholm v.
Georgia, where it was held that assumpsit might be maintained
against a state by a citizen of a different state, the llth
article of the amendments of the constitution above quoted, was
adopted.
23. In those cases in which original jurisdiction is given to
the supreme court, the judicial power of the United States cannot
be exercised in its appellate form. With the exception of those
cases in which original jurisdiction is given to this court,
there is none to which the judicial power extends, from which the
original jurisdiction of the inferior courts is excluded by the
constitution.
24. The constitution establishes the supreme court and defines
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its jurisdiction. It enumerates the cases in which its
jurisdiction is original and exclusive, and defines that which is
appellate. See ll Wheat. 467.
25. Congress cannot vest in the supreme court original
jurisdiction in a case in which the constitution has clearly not
given that court original jurisdiction; and affirmative words in
the constitution, declaring in what cases the supreme court shall
have original jurisdiction, must be construed negatively as to
all other cases, or else the clause would be inoperative and
useless. 1 Cranch, 137. See 5 Pet. 15 Pet. 284; 12 Pet. 657; 9
Wheat. 738 6 Wheat. 264.
26. - 2. The supreme court exercises appellate jurisdiction in
the following different modes:
(1.) By writ of error from the final judgments of the circuit
courts; of the district courts, exercising the powers of circuit
courts; and of the superior, courts of the territories,
exercising the powers of circuit, courts, in certain cases. A
writ of error does not lie to the supreme court to reverse the
judgment of a circuit court, in a civil action by writ of error
carried from the district court to the circuit court. The United
States v. Goodwin, 7 Cranch, 108. But now, by the act of July 4,
1840, c. 20, §3, it is enacted that writs of error shall lie to
the supreme court from all judgments of a circuit court, in cases
brought there by writs of error from the district court, in like
manner and under the same regulations, as are provided by law for
writs of error for judgments rendered upon suits originally
brought in the circuit court.
27. - (2.) The supreme court has jurisdiction by appeals from
the final decrees of the circuit courts; of the district courts
exercising the powers of circuit courts; and of the superior
courts of territories, exercising the powers of circuit courts in
certain cases. See 8 Cranch, 251 6 Wheat. 448.
28. - (3.) The supreme court has also jurisdiction by writ of
error from the, final judgments and decrees of the highest courts
of law or equity in a state, in the cases provided for by the
twenty-fifth section of the act of September 24th, 1789, which
enacts that a final judgment or decree, in any suit in the
highest court of law, or equity of a, state, in which a decision
in the suit could be had, where is drawn in question the validity
of a treaty, or statute of, or an authority exercised under, the
United States, and the decision is against their validity; or
where is drawn in question the validity of a statute of, or an
authority exercised under any state, on the ground of their being
repugnant to the constitution, treaties, or laws of the United
States, and the decision is in favor of such their validity; or
where is drawn in question the construction of any clause of the
constitution, or of a treaty or statute of, or commission held
under the United States, and the decision is against the title,
right, privilege, or exemption specially set up or claimed by
either party, under such clause of the said constitution, treaty,
statute, or commission, may be re-examined, and reversed or
affirmed in the supreme court of the United States, upon a writ
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of error, the citation being signed by the chief-justice or
judge, or chancellor of the court rendering or passing the
judgment or decree complained of, or by a justice of the supreme
court of the United States, in the same manner, and under the
same regulations, and the writ shall have the same effect as if
the judgment or decree complained of had been rendered or passed
in a circuit court; and the proceeding upon the reversal shall
also be the same, except that the supreme court, instead of
remanding the cause for a final decision as before provided, may,
at their discretion, if the cause shall have been once remanded
before, proceed to a final decision of the same, and award
execution. But no other error shall be assigned or regarded as a
ground of reversal, in any such case as aforesaid, than such as
appears on the face of the record, and immediately respects the
before mentioned questions of validity, or construction of the
said constitution, treaties, statutes, commissions, or
authorities in dispute. See 5 How. S. C. R. 20, 55
29. The appellate jurisdiction of the supreme court extends to
all cases pending in the state courts and the twenty-fifth
section of the judiciary act, which authorizes the exercise of
this jurisdiction in the specified cases by writ of error, is
supported by the letter and spirit of the constitution. 1 Wheat.
304.
30. When the construction or validity of a treaty of the United
States is drawn in question in the state courts, and the decision
is against its validity, or the title specially set up by either
party under the treaty, the supreme court has jurisdiction to
ascertain that title, and to determine its legal meaning. 1
Wheat. 358; 5 Cranch, 344; 9 Wheat. 738; 1 Pet. 94; 9 Pet.
224; 10 Pet. 368; 6 Pet. 515.
31. The supreme court has jurisdiction although one of the
parties is a state, and the other a citizen of that state. 6
Wheat. 264.
32. Under the twenty-fifth section of the judiciary act, when
any clause of the constitution or any statute of the United
States is drawn in question, the decision must be against the
title or right set up by the party under such clause or statute;
otherwise the supreme court has no appellate jurisdiction of the
case. 12 Wheat. 117, 129 6 Wheat. 598 3 Cranch, 268 4 Wheat. 311;
7 Wheat. 164; 2 Peters, 449; 2 Pet. 241; 11 Pet. 167; 1 Pet.
655; 6 Pet. 41; 5 Pet. 248.
33. When the judgment of the highest court of law of a state,
decides in favor of the validity of a statute of a state drawn in
question, on the ground of its being repugnant to the
constitution of the United States, it is not a final judgment
within the twenty-fifth section of the judiciary act if the suit
has been remanded to the inferior court, where it originated, for
further proceedings, not inconsistent with the judgment of the
highest court. 12 Wheat. 135.
34. The words " matters in dispute" in the act of congress,
which is to regulate the jurisdiction of the supreme court, seem
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appropriated to civil causes. 3 Cranch, 159. As to the manner of
ascertaining the matter in dispute, see 4 Cranch, 216; 4 Dall.
22; 3 Pet. 33; 3 Dall. 365; 2 Pet. 243; 7 Pet. 634; 5
Cranch, 13; 4 Cranch, 316.
35. - (4.) The supreme court has juris- diction by certificate
from the circuit court, that the opinions of the judges are
opposed on points stated, as provided for by the sixth section of
the act of April 29th, 1802. The provisions of the act extend to
criminal as well as to civil cases. See 2 Cranch, 33; 10 Wheat.
20 2 Dall. 385; 4 Hall's Law Journ. 462; 5 Wheat. 434; 6
Wheat.
542; 12 Wheat. 212; 7 Cranch, 279.
36. - (5.) It has also jurisdiction by mandamus, prohibition,
habeas corpus, certiorari, and procedendo.
37. - 2. The criminal jurisdiction of the supreme court is
derived from the constitution and the act of September 24th,
1789, s. 13, which gives the supreme court exclusively, all such
jurisdiction of suits or proceedings against ambassadors, or
other public ministers, or their domestics, as a court of law can
have or exercise consistently with the law of nations. But it
must be remembered that the act of April 30tb, 1790, sections 25
and 26, declares void any writ or process whereby the person of
any ambassador, or other public minister, their domestics or
domestic servants, may be arrested or imprisoned. Art. 2. The
local courts.
38. The local courts of the United States are, circuit courts,
district courts, and territorial courts., 1. The circuit courts.
39. In treating of circuit courts, it will be convenient to
consider, 1st. Their organization; and, 2d. Their jurisdiction.
40. - §1. Of the organization of the circuit courts. The
circuit courts are the principal inferior courts established by
congress. There are nine circuit courts, composed of the
districts which follow, to wit:
41. - 1. The first circuit consists of the districts of New
Hampshire, Massachusetts, Rhode Island, and Maine. It consists of
a judge of the supreme court and the district judge of the
district where such court is holden. See Acts April 29, 1802
March 26, 1812 and March 30, 1820.
42. - 2 The second circuit is composed of the districts of
Vermont, Connecticut and New York. Act of March 3, 183 7.
43. - 3. The third circuit consists of the districts of New
Jersey, and eastern and western Pennsylvania;. Act of March 3,
1837.
44. - 4. The fourth circuit is composed of Maryland, Delaware,
and Virginia. Act of Aug. 16, 1842.
45. - 5. The fifth circuit is composed of Alabama and
Louisiana. Act of August 16, 1842.
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46.- 6. The sixth circuit consist of the districts of North
Carolina, South Carolina, and Georgia. Act of Aug. 16, 1842.
47. - 7. The seventh circuit is composed of Ohio, Indiana,
Illinois, and Michigan. Act of March 3, 1837, §1.
48.-8. The eighth circuit includes Kentucky, East and West
Tennessee, and Missouri. Act of March 3, 1837, §1. By the
Act of April 14, 1842, ch. 20, §1, it is enacted that the
district court of the United States at Jackson, in the district
of West Tennessee, shall in future be attached to, and form a
part of the eighth judicial district of the United States, with
all the power and jurisdiction of the circuit court held at
Nashville, in the middle district of Tennessee.
49. - 9. The ninth circuit is composed of the districts of
Alabama, the eastern district of Louisiana, the district of
Mississippi, and the district of Arkansas. Act of March 3, 1837,
§1.
50. In several districts of the United States, owing to their
remoteness from any justice of the supreme court, there are no
circuit courts held. But in these, the district court there is
authorized to act as a circuit court, except so far as relates to
writs of error or appeals from judgments or decrees in such
district court.
51. The Act of March 3, 1837, provides, " That so much of any
act or acts of congress as vests in the district courts of the
United States for the districts of Indiana, Illinois, Missouri,
Arkansas, the eastern district of Louisiana, the district of
Mississippi, the northern district of New York, the western
district of Virginia, and the western district of Pennsylvania,
and the district of Alabama, or either of them, the power and
jurisdiction of circuit courts, be, and the same is hereby,
repealed; and there shall hereafter be circuit courts held for
said districts by the chief or associate justices of the supreme
court, assigned or allotted to the circuit to which such
districts may respectively belong, and the district judges of
such districts, severally and respectively, either of whom shall
constitute a quorum; which circuit courts, and the judges
thereof, shall have like powers, and exercise like jurisdiction
as other circuit courts and the judges thereof; and the said
district courts, and the judges thereof, shall have like powers,
and exercise like jurisdiction, as the district courts, and the
judges thereof in the other circuits. From all judgments and
decrees, rendered in the district courts of the United States for
the western district of Louisiana, writs of error and appeals
shall lie to the circuit court in the other district in said
state, in the same manner as from decrees and judgments rendered
in. the districts within which a circuit court is provided by
this act."
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52. In all cases where the day of meeting of the circuit court
is fixed for a particular day of the mouth, if that day happen on
Sunday, then, by the Act of 29th April, 1802, and other acts, the
court shall be held the next day.
53. The Act of April 29, 1802, §5, further provides, that on
every appointment which shall be hereafter made, of a chief
justice, or associate justice, the chief justice and associate
justices shall allot among themselves the aforesaid circuits, as
they shall think fit, and shall enter such allotment on record.
54. The Act of March 3, 1837, §4, directs that the allotment of
the chief justice and the associate justices of the said supreme
court to the several circuits shall be made as heretofore.
55. And by the Act of August 16, 1842, the justices of the
supreme court of the United States, or a majority of the are
required to allot the several districts among the justices of the
said court.
56. And in case no such allotment shall be made by them, at
their sessions next succeeding such appointment, and also, after
the appointment of any judge as aforesaid, and before any other
allotment shall have been made, it shall and may be lawful for
the president of the United States, to make such allotment as he
shall deem proper which allotment, in either case, shall be
binding until another allotment shall be made. And the circuit
courts constituted by this act shall have all the power,
authority and jurisdiction, within the several districts of their
respective circuits, that before the 13th February, 1801,
belonged to the circuit courts of the United States.
57. The justices of the supreme court of the United States, and
the district judge of the district where the circuit is holden,
compose the judges of the circuit court. The district judge may
alone hold a circuit court, though no judge of the supreme court
may be allotted to that circuit. Pollard v. Dwight, 4 Cranch,
421.
58. The Act of September 24th, 1789, §6, provides, that a
circuit court may be adjourned from day to day, by one of its
judges, or if none are present, by the marshal of the district,
until a quorum be convened. By the Act of May 19, 1794, a circuit
court in any district, when it shall happen that no judge of the
supreme court attends within four days after the time appointed
by law, for the commencement of the sessions, may be adjourned to
the next stated term, by the judge of the district, or, in case
of his absence also, by the marshal of the district. But by the
4th section of the Act of April 29, 1802, where only one of the
judges thereby directed to hold the circuit courts shall attend,
such circuit court may be held by the judge so attending.
59. By the Act of March 2, 1809, certain duties are imposed oil
the justices of the supreme court, in case of the disability of a
district judge within their respective circuits to hold a
district court. Sect. 2, enacts, that in case of the disability
of the district judge of either of the district courts of the
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United States, to hold a district court, and to perform the
duties of his office, and satisfactory evidence thereof being
shown to the justice of the supreme court allotted to that
circuit, in which such district court ought, by law to be holden,
and on application of the district attorney, or marshal of such
district, in writing, the said justice of the supreme court
shall, thereupon, issue his order in the nature of a certiorari)
directed to the clerk of such district court, requiring him
forthwith to certify unto the next circuit court, to be holden,
in said district, all actions, suits, pauses, pleas, or
processes, civil or criminal, of what nature or land soever, that
may be depending in such district court, and undetermined, with
all the proceedings thereon, and all files, and papers relating,
thereto, which said order shall be immediately published in one
or more newspapers, printed in said district, and at least thirty
days before the session of such circuit court, and shall be
deemed a sufficient notification to all coucerned. And the said
circuit court shall, thereupon, have the same cognizance of all
such actions, suits, causes, pleas, or processes, civil or
criminal, of what nature or kind soever, and in the like manner,
as the district court of said district by law might have, or the
circuit court, had the same been originally commenced therein,
and shall proceed to hear and deterime the same accordingly; and
the said justice of the supreme court, during the continuance of
such disability, shall, moreover, be invested with, and exercise
all and singular the, powers and authority, vested by law in the
judge of the district court in said district. And all bonds and
recognizances taken for, or returnable to, such district court,
shall be construed and taken to be the circuit court to be holden
thereafter, in pursuance of this act, and shall have the same
force and effect in such court as they would have had in the
district court to which they were taken. Provided, that nothing
in this act contained shall be so construed, as to require of the
judge of the supreme court, within whose circuit such district
may lie, to hold any special court, or court of admiralty, at any
other time than the legal time for holding the circuit court of
the United States in and for such district.
60. Sect. 2, provides, that the clerk of such district shall,
during the continuance of the disability of the district judge,
continue to certify, as aforesaid, all suits or actions, of what
nature or kind soever, which may thereafter be brought to such
district court, and the same transmit to the circuit court next
thereafter to be holden in the same district. And the said
circuit court shall have cognizance of the same, in like manner
as is hereinbefore provided in this act, and shall proceed to
bear and determine the same. Provided, nevertheless, that when
the disability of the district judge shall cease, or be removed,
all suits or actions then pending and undetermined in the circuit
court, in which, by law, the district courts have an exclusive
original cognizance, shall be remanded, and the clerk of the said
circuit court shall transmit the same, pursuant to the order of
the said court, with all matters and things relating thereto, to
the district Court next thereafter to be holden in said district,
and the same proceedings shall be had therein, as would have
been, had the same originated, or been continued, in the said
district court.
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61. Sect. 3, enacts, that in case of the district judge in any
district being unable to discharge his duties as aforesaid, the
district clerk of such district shall be authorized and
empowered, by leave or order of the circuit judge of the circuit
in which such district is included, to take, during such
disability of the district judge, all examinations, and
depositions of witnesses, and to make all necessary rules and
orders, preparatory to the final hearing of all causes of
admiralty and maritime jurisdiction. See 1 Gall. 337 1 Cranch,
309 note to Hayburn's case, 3 Dall. 410.
62. If the disability of the district judge terminate in his
death, the circuit court must remand the certified causes to the
district court. Ex parte United States, 1 Gall. 337.
63. By the first section of the Act of March 3, 1821, in all
suits and actions in any district court of the United States, in
which it shall appear that the judge of such court is any ways
concerned in interest, or has been of counsel for either party,
or is so related to, or connected with, either party, as to
render it improper for him, in his opinion, to sit on the trial
of such suit or action, it shall be the duty of such judge, on
application of either party, to cause the fact to be entered on
the records of the court, and also an order that an authenticated
copy the thereof, with all the proceedings in such suit or
action, shall be forthwith certified to the next circuit court of
the district, and if there be no circuit court in such district,
to the next circuit court in the state, and if there be no
circuit court in such state, to the most convenient circuit court
in an adjacent state; which circuit court shall, upon such
record being filed with the clerk thereof, take cognizance
thereof, in like manner as if such suit or action had been
originally commenced in that court, and shall proceed to bear and
determine the same accordingly, and the jurisdiction of such
circuit court shall extend to all such cases to be removed, as
were cognizable in the district court from which the same was
removed.
64. And the Act of February 28, 1839, §8, enacts, "That in all
suits and actions, in any circuit court of the United States, in
which it shall appear that both the judges thereof, or the judge
thereof, who is solely competent by law to try the same, shall be
any ways concerned in interest therein, or shall have been of
counsel for either party, or is, or are so related to, or
connected with, either party as to render it improper for him or
them, in his or their opinion, to sit in the trial of such suit
or action, it shall be the duty of such judge, or judges, on
application of either party, to cause the fact to be entered on
the records of the court; and, also, to make an order that an
authenticated copy thereof, with all the proceedings in such suit
or action, shall be certified to the most couvenient circuit
court in the next adjacent state, or in the next adjacent
circuit; which circuit court shall, upon such record and order
being filed with the clerk thereof, take cognizance thereof in
the same manner as if such suit or action had been rightfully and
originally commenced therein, and shall proceed to hear and
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determine the same accordingly; and the proper process for the
due execution of the judgment or decree rendered therein, shall
run into, and may be executed in, the district where such
judgment or decree was rendered; and, also, into the district
from which such suit or action was removed."
65. The judges of the supreme court are not appointed as
circuit court judges, or, in other words, have no distinct
commission for that purpose: but practice and acquiescence under
it, for many years, were held to afford an irresistible argument
against this objection to their authority to act, when made in
the year, 1803, and to have fixed the construction of the
judicial system. The court deemed the contemporary exposition to
be of the most forcible nature, and considered the question at
rest, and not to be disturbed then. Stuart v. Laird, 1 Cranch,
308. If a vacancy exist by the death of the justice of the
supreme court to whom the district was allotted, the district
judge may, under the act of congress, discharge the official
duties, (Pollard v. Dwight, 4 Cranch, 428. See the fifth section
of the Act of April 29, 1802,) except that he cannot sit upon a
writ of error from a decision in the district court. United
States v. Lancaster, 5 Wheat. 434.
66. It is enacted, by the Act of Februrary 28, 1839, §2, that
all the circuit courts of the United States shall have the
appointment of their own clerks; and in case of disagreement
between the judges, the appointment shall be made by the
presiding judge of the court.
67. The marshal of the district is an officer of the court, and
the clerk of the district court is also clerk of the circuit
court in such district. Act of September 24, 1789, §7.
68. In the District of Columbia, there is a circuit court
established by particular acts of congress, composed of a chief
justice and two associates. See Act. of February 27, 1801; 12
Pet. 524; 7 Pet. 203; 7 Wheat. R. 534; 3 Cranch, 159; 8
Cranch, 251; 6 Cranch 233. §2. Of the Jurisdiction of the
Circuit Courts.
69. The jurisdiction of the circuit courts is either civil or
criminal. (1.) Civil Jurisdiction. The civil jurisdiction is
either at law or in equity. Their civil jurisdiction at law is,
1st. Original. 2d. By removal of actions from the state courts.
3d. By writ of mandamus. 4tb. By appeal.
70. - 1st. The original jurisdiction of the circuit courts at
law, may be considered, first, as to the matter in controversy
second, with regard to the parties litigant. (1.) The Matter in
Dispute.
71. By the Act of September 24, 1789, §11, to give jurisdiction
to the circuit court, the matter in dispute must exceed $500. In
actions to recover damages for torts, the sum laid in the
declaration is the criterion as to the matter in dispute. 3 Dall.
358. In an action of covenant on an instrument under seal,
containing a penalty less than $500, the court has jurisdiction
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if the declaration demand more than $500. 1 Wash. C. C. R. 1. In
ejectment, the value of the land should appear in the
declaration; 4 Wash. C. C. R. 624; 8 Cranch, 220; 1 Pet. 73;
but though the jury do not find the value of the land in dispute,
yet if evidence be given on the trial, that the value exceeds
$500, it is sufficient to fix the jurisdiction; or the court may
ascertain its value by affidavits. Pet. C. C. R. 73.
72. If the matter in dispute arise out of a local injury, for
which a local action must be brought, in order to give the
circuit court jurisdiction, it must be brought in the district
where the lands lie. 4 Hall's Law Journal, 78.
73. By various acts of congress, jurisdiction is given to the
circuit courts in cases where actions are brought to recover
damages for the violation of patent and Copyrights, without
fixing any amount as the limit. See Acts of April 17, 1800, §4;
Feb. 15, 1819; 7 Johns. 144; 9 Johns. 507.
74. The circuit courts have jurisdiction in cases arising under
the patent laws. By the Act of July 4, 1836, §17, it is enacted,
" That all actions, suits, controversies, and cases arising under
any law of the United States, granting or confirming to inventors
the exclusive right to their inventions or discoveries, shall be
originally cognizable, as well in equity as at law, by the
circuit courts of the United States, or any district court having
the powers and jurisdiction of a circuit court; which courts
shall have power, upon bill in equity filed by any party
aggrieved, in any such case, to grant injunctions, according to
the course and principles of courts of equity, to prevent the
violation of the rights of any inventor, as secured to him by any
law of the United States, on such terms and conditions as said
courts may deem reasonable. Provided, however, That from all
judgments and decrees, from any such court rendered in. the
premises, a writ of error or appeal, as the case may require,
shall lie to the supreme court of the United States, in the same
manner and under the same circumstances as is now provided by law
in other judgments and decrees of circuit courts, and in all
other cases in which the court shall deem it reasonable to allow
the game."
75. In general, the circuit court has no original jurisdiction
of suits for penalties and forfeitures arising under the laws of
the United States, nor in admiralty cases. 2 Dall. 365 4 Dall.
342; Bee, 19. (2.) The character of the parties.
76. Under this head will be considered 1. The United States. 2.
Citizens of difrerent states. 3. Suits where an alien is a party.
4. When an assignee is plaintiff. 5. Defendant must be an
inhabitant of the circuit. (i.) The United States.
77. The United States may sue on all contracts in the circuit
courts where the sum in controversy exceeds, besides costs, the
sum of $500 but, in cases of penalties, the action must be
commenced in the district court, unless the law gives express
jurisdiction to the circuit courts. 4 Dall. 342. Under the Act of
March 3, 1815, §4, the circuit court has jurisdiction
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concurrently with the district court of all suits at common law
where any officer of the United States sues under the authority
of an act of congress; as where the post-master general sues
under an act of congress for debts or balances due to the general
post-office. 12 Wheat. 136. See 2 Pet. 447; 1 Pet. 318.
78. The circuit court has jurisdiction on a bill in equity
filed b the United States against the debtor of their debtor,
they claiming priority under the statute of March 2, 1798, c. 28,
§65, though the law of the state where the suit is brought
permits a creditor to proceed against the debtor of his debtor by
a peculiar process at law. 4 Wheat. 108. (ii.) Suits between
citizens of different states.
79. The Act of September 24, 1789, §11, gives jurisdiction to
the circuit court in suits of civil nature when the matter in
dispute is of a certain amount, between a citizen of the state
where the suit is brought, and a citizen of another state; one
of the parties must therefore be a citizen of the state where the
such is brought. See 4 Wash. C. C. R. 84; Pet. C. C. R. 431; 1
Sumn. 581; 1 Mason, 520; 5 Cranch, 288; 3 Mason, 185; 8
Wheat.'699; 2 Mason, 472; 5 Cranch, 57; Id. 51; 6 Wheat. 450;
1 Pet. 238; 4 Wash. C. C. R. 482, Id. 595.
80. Under this section the division of a state into two or more
districts does not affect the jurisdiction of the circuit court,
on account of citizenship. The residence of a party in a
different district of a state from that in which the suit is
brought, does not exempt him from the jurisdiction of the court;
if he is found in the district where he is sued he is not within
the prohibition of this section. 11 Pet. 25. A territory is not a
state for the purpose of giving jurisdiction, and, therefore, a
citizen of a territory cannot sue the citizen of a State in the
circuit court. 1 Wheat. 91. (iii.) Suits where on alien is a
party.
81. The Act of September 24, 1780, §11, gives the circuit court
cognizance of all suits of a civil nature where an alien is a
party; but these general words; must be restricted by the
provision in the constitution which gives jurisdiction in
controversies between a state, or the citizens of a state, and
foreign states, citizens or subjects; and the statute cannot
extend the jurisdiction beyond the limits of the constitution. 4
Dall. 11; 5 Cranch, 308. When both parties are aliens, the
circuit court has no jurisdiction. 4 Cranch, 46; 4 Dall. 11. An
alien who holds lands under a special law of the state in which
he is resident, may maintain an action in relation to those
lands, in the circuit court. 1 Baldw. 216. (iv.) When an assignee
is the plaintiff.
82. The court has no jurisdiction unless a suit might have been
prosecuted in such court to recover on the contract assigned, if
no assignment had been made, except in cases of bills of
exchange. Act of September 24, 1789, §11; see 2 Pet. 319; 1
Mason, 243; 6 Wheat. 146; 11 Pet. 83; 9 Wheat. 537; 6 Cranch,
332; 4 Wash. C. C. R. 349; 4 Mason, 435; 12 Pet. 164; 2
Mason, 252. It is said that this section of the act of congress
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has no application to the conveyance of lands from a citizen of
one state to a citizen of another. The grantee in such, case may
maintain his action in the circuit court, when otherwise properly
qualified, to try the title to such lands. 2 Sumn. 252. (V.) The
defendant must be an inhabitant of, or found in the circuit.
83. The circuit court has no jurisdiction of an action against
a defendant unless he be an inhabitant of the district in which
such court is located, or found therein, at the time of serving
the writ. 3 Wash. C. C. R. 456. A citizen of one state may be
sued in another, it the process be served upon him in the latter;
but in such cases) the plaintiff must be a citizen of the latter
state, or an alien. 1 Pet. C. C. R. 431. 2d. Removal of actions
from the state court's.
84. The, Act of September 24, 1789, gives, in certain cases,
the right of removing a suit instituted in a state court to the
circuit court of the district. It is enacted by that law, that if
a suit be commenced in any state court against an alien, or by a
citizen of the state in which the suit is brought, against a
citizen of another state, and the matter in dispute exceeds the
aforesaid sum or value of five hundred dollars, exclusive of
costs, to be made to appear to the satisfaction of the court, and
the defendant shall, at the time of entering his appearance in
such state court, file a petition for the removal of the cause
for trial, into the next circuit court, to be held in the
district where the suit is pending, and offer good and sufficient
security for his entering in such court, on the first day of its
session, copies of the said process against bim, and also for his
then appearing and entering special bail in the cause, if special
bail was originally required therein, it shall then be the duty
of the state court to accept the surety, and proceed no further
in the cause. And any bail that may have been originally taken
shall be discharged. And the said copies being entered as
aforesaid in such court of the United States, the cause shall
there proceed in the same manner as if it had been brought there
by original process. And any attachment of the goods or estate of
the defendant, by the original process, shall hold the goods or
estate so attached, to answer the final judgment, in the same
manner as by the laws of such state they would have been holden
to answer final judgment, had it been rendered by the circuit
court in which the suit commenced. Vide Act of September 24,
1789, §12; 4 Dall. 11; 5 Cranch, 303; 4 Johns. R. 493; 1 Pet.
R. 220; 2 Yeates, R. 275; 4 W. C. C. R. 286, 344.
85. By the Constitution, art. 3, §2, 1, the judicial power
shall extend to controversies between citizens of the same state,
claiming lands under grants of different states.
86. By a clause of the 12th section of the Act of September
24th, 1789, it is enacted, that, if in any action conmmenced in a
state court, the title of land be concerned, and the parties are
citizens of the same state, and the matter in dispute exceeds the
sum or value of five hundred dollars, exclusive of costs, the sum
or value being made to appear to the satisfaction of the court,
either party, before the trial, shall state to the court, and
make affidavit, if it require it, that he claims, and shall rely
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upon a right or title to the land, under grant from a state,
other than that in which the suit is pending, and produce the
original grant, or an exemplification of it, except where the
loss of records shall put it out of his power, and shall move
that the adverse party inform the court, whether he claims a
right of title to the land under a grant from the state in which
the suit is pending; the said adverse party shall give such
information, otherwise not be allowed to plead such grant, or
give it in evidence upon the trial; and if he informs that he
does claim under any such grant, the party claiming under the
grant first mentioned, may then, on motion, remove the cause for
trial, to the next circuit court to be holden in such district.
But if he is the defendant, he shall do it under the same
regulations, as in the before mentioned case of the removal of a
cause into such court by an alien. And neither party removing the
cause shall be allowed to plead, or give evidence of, any other
title than that by him stated as aforesaid, as the ground of his
claim. See 9 Cranch, 292 2 Wheat. R. 378.
87. Application for removal must be made during the term at
which the defendant enters his appearance. 1 J. J. Marsh. 232. If
a state court agree to consider a petition to remove the cause as
filed of the preceding term, yet if the circuit court see by the
record, that it was not filed till a subsequent term, they will
not permit the cause to be docketed. Pet. C.. C. R. 44 Paine, 410
but see 2 Penning. 625.
88. In chancery, when the defendant wishes to remove the suit,
he must file his petition when he enters his appearance; 4
Johns. Ch. 94; and in an action in a court of law, at the time
of putting in special bail. 12 Johns. 153. And if an alien file
his petition when he filed special bail, he is in time, though
the bail be excepted to. 1 Caines, 248; Coleman, 58. A defendant
in ejectment may file his petition. when he is let in to defend.
4 Johns. 493. See Pet. C. C. R. 220; 2 Wash. C. C. R. 463; 2
Yeates, 275, 352; 3 Dall. 467; 4 Wash. C. C. R. 286; 2 Root
444; 5 John. Ch. R. 300 3 Harn. 48; 4 Wash. C. C. R. 84. 3d.
Remedy by Mandamus.
89. The power of the circuit Court to issue a mandamus, is
confined, exclusively, to cases in which it may be necessary for
the exercise of a jurisdiction already existing; as, for
instance, if the court below refuse to proceed to judgment, then
a mandamus in the nature of a procedendo may issue. 7 Cranch,
504; 6 Wheat. R. 598. After the state court had refused to
permit the removal of a cause on petition, the circuit court
issued a mandamus to transfer the cause.
4th. Appellate Jurisdiction.
90. The appellate jurisdiction is exercised by means of, 1.
Writs of error. 2 Appeals from the district courts in admiralty
and maritime jurisdiction. 3. Certiorari. 4. Procedendo.
91. - [l.] This court has jurisdiction to issue writs of error
to the district court, on judgments of that court in civil cases
at common law.
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92. The 11th section of the Act of September 24, 1789,
provides, that the circuit courts shall also have appellate
jurisdiction from the district courts, under the regulations and
restrictions thereinafter provided.
93. By the 22d section, final decrees and judgments in civil
actions in a district court, where the matter in dispute exceeds
the, sum or value of fifty dollars, exclusive of costs, may be
reexamined, and reversed or affirmed in a circuit court holden in
the same district, upon a writ of error, whereto shall be annexed
and returned therewith at the day and place therein mentioned, an
authenticated transcript of the record and assignment of errors,
and prayer for reversal, with a citation to the adverse party,
signed by the judge of such district court, or a justice of the
supreme court, the adverse party having at least twenty days
notice. But there shall be no reversal on such writ of error, for
error in ruling any plea in abatement, other than a plea to the
jurisdiction of the court, or for any error in fact. And writs of
error shall not be brought but within five years after rendering
or passing the judgment or decree complained of; or, in case
the person entitled to such writ of error be an infant, non
compos mentis, or imprisoned, then within five years, as
aforesaid, exclusive of the time of such disability. And every
justice or judge signing a citation or any writ of error as
aforesaid, shall take good and sufficient security, that the
plaintiff in error shall prosecute his writ to effect, and answer
all damages and costs, if he fail to make his plea good.
94. The district judge cannot sit in the circuit court on a
writ of error to the district court. 5 Wheat. R. 434.
95. It is observed above, that writs of error may be issued to
the district court in civil cases at common law, but a writ of
error does not lie from a circuit to a district court in an
admiralty or maritime cause. 1 Gall. R. 5..
96. - [2.] Appeals from the district to the circuit court take
place generally in civil causes of admiralty or maritime
jurisdiction.
97. By the Act of March 3, 1803, §2, it is enacted, that from
all final judgments or decrees in any of the district courts of
the United States, an appeal where the matter in dispute,
exclusive of costs, shall exceed the sum or value of fifty
dollars, shall be allowed to the district court next to be holden
in the district where such final judgment or judgments, decree or
decrees shall be rendered: and the circuit courts are thereby
authorized and required, to hear and determine such appeals.
98. - [3.] Although no act of congress authorizes the circuit
court to, issue a certiorari to the district court for the
removal of a cause, yet if the cause be so removed, and instead
of taking advantage of the irregularity in proper time and in a
proper manner, the defendant makes the defence and pleads to
issue, he thereby waives the objection, and the suit will be
considered as an original one in the circuit court, made so by
consent of parties. 2 Wheat. R. 221.
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99.-[4.1 The circuit court may issue a writ of procedendo to
the district court.
Equity Jurisdiction of the Circuit Courts.
100. Circuit courts are vested with equity jurisdiction in
certain cases. The Act of September, 1789, §11, gives original
cognizance, concurrent with the courts of the several states, of
all suits of a civil nature at common law or in equity, where the
matter in dispute exceeds, exclusive of costs, the sum or value
of five hundred dollars, and the United States are plaintiffs or
petitioners, or an alien is a party, or. the suit is between a
citizen of the state where the suit is brought and a citizen of
another state.
101. The Act of April 15, 1819, §1, provides, " That the
circuit court of the United States shall. have original
cognizance, as well in equity as at law, of all actions, suits,
controversies, and cases arising under may law of the United
States, granting or confirming to authors or inventors, the
exclusive right to their respective writings, inventions, and
discoveries; and upon any bill in equity filed by any party
aggrieved, in such cases, shall have authority to grant
injunctions according to the course and principles of courts of
equity, to prevent the viola-tion of the rights of any authors or
inventors, secured to them by any laws of the United States, on
such terms and conditions as the said courts may deem fit and
reasonable:.provided, however, that from all judgments and
decrees of any circuit courts rendered in the premises, a writ of
error or appeal as the case may. require, shall lie to the
supreme court of the United States, in the same Maniaer and under
the same circumstances, as is now provided by law, in other
judgments and decrees of such circuit court."
102. By the Act of August 23, 1842, it is enacted, §5, " That
the district courts, as courts of admiralty, and the circuit
courts, as courts of equity, shall be deemed always open for the
purpose of filing libels, bills, petitions, answers, pleas, and
other plead- ings, for issuing and returning mesne and final
process and commissions, and for making and directing all
interlocutory motions, orders, rules, and other proceedings
whatever, preparatory to the hearing of all causes pending
therein upon their merits. And it shall be competent for any.
judge of the court, upon reasonable notice to the parties, in the
clerk's office or at chambers, and in vacation as well as in
term, to make and direct, and award all such process,
commissions, and interlocutory orders, rules, and other
proceedings, whenever the same are not grantable of course
according to the rules and practice of the court."
(2.) Criminal Jurisdiction of the Circuit Courts.
103. The often cited llth section of the Act of the 24th of
September, 1789, gives the circuit courts exclusive cognizance of
all crimes and offences cognizable under the authority of the
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United States, except where that act otherwise provides, or the
laws of the United States shall otherwise direct, and concurrent
jurisdiction with the district courts of the crimes and offences
cognizable. therein. The jurisdiction of the circuit courts in
criminal cases is confined to offences committed within the
district for which those courts respectively sit when they are
committed on land. Serg. Const. Law, 129; 1 Gallis. 488.
2. Of the District Courts.
104. In treating of district courts, the same division which
was made, in considering circuit courts, will here be adopted, by
taking a view, 1. Of their organization and, 2. Of their
jurisdiction. §1. Of the Organization of the District Courts.
105. The United States are divided into districts, in each of
which is a court called a district court, which is to consist of
one judge, who is to reside in the district for wbich he is
appointed, and to hold annually four sessions. Act of September
24, 1789. By subsequent acts of congress, the number of annual
sessions in particular districts, is sometimes more and sometimes
less; and they are to be held at various places in the district.
There is also a district court in the District of Columbia, held
by the chief justice of the circuit court of that district. §2.
Jurisdiction of the District Courts.
106. Their jurisdiction is either civil or criminal.
107. - (1.) Their civil jurisdiction extends, 1. To admiralty
and maritime causes: the admiralty and maritime jurisdiction, is
either the ordinary jurisdiction, which comprehends prize suits;
cases of salvage actions for torts; and actions on contracts,
such. as seamen's wages, pilotage, bottomry, ransom, materials,
and the like; or the extraordinary or expressly vested
jurisdiction, which includes cases of seizures under the revenue
laws, &c.; and captures within the jurisdiction of the United
States.
108.-2. To cases of seizure on land under the laws of the
United States, and in suits for penalties and forfeitures,
incurred under the laws of the United States.
109.-3. To cases in which an alien sues for a tort, in
violation of the laws of nations, or a treaty of the United
States.
110. - 4. To suits instituted by the United States.
111. - 5. To actions by and against consuls.
112. - 6. To certain cases in equity.
113. - 1. The admiralty and maritime jurisdiction of the
district court is ordinary or extraordinary.
114. - 1st. The ordinary jurisdiction is granted by the Act of
September 24th, 1789, It is there enacted, that the district
court shall have exclusive original cognizance of all civil
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causes of admiralty and maritime jurisdiction. This jurisdiction
is exclusive. Bee, 19; 3 Dall. 16; Paine, 111; 4 Mason, 139.
115. This ordinary jurisdiction is exercised in,
116. - 1. Prize suits. The Act of September 24, 1789, §9, vests
in the district courts as full jurisdiction of all prize causes
as the admiralty of England; and this jurisdiction is an
ordinary inherent branch of the powers of the court of admiralty,
whether considered as prize courts or instance courts, 3 Dall.
16; Paine, 111.
117. The act of congress marks out not only the general
jurisdiction of the district courts, but also that of the several
courts in relation to each other, in cases of seizure on the
waters of the United States, navigable, &c. When the seizure is
made within the waters of one district, the court of that
district has exclusive, jurisdiction, though the offence may have
been committed out of the district. When the seizure is made on
the high seas, the jurisdiction is in the court of the district
where the property may be brought. 9 Wheat. 402; 6 Cranch; 281;
1 Mason, 360; Paine, 40.
118. When the seizure has been made within the waters of a
foreign nation, the district court has jurisdiction, when the
property has been brought into the district, and a prosecution
has been instituted there. 9 Wheat. 402; 9 Cranch. 102.
119. The district court has jurisdiction of seizures, and of
the question of who is entitled to their proceeds, as informers
or otherwise; and the principal jurisdiction is exclusive; the
question, as to who is the informer, is also exclusive. 4 Mason,
139.
120. - (2.) Cases of salvage. Under the constitution and laws
of the United States, this court has exclusive original
cognizance in cases of salvage; and, as a consequence, it has
the power to determine to whom the residue of the property
belongs, after deducting the salvage. 3 Dall. 183.
121. - (3.) Actions arising out of tort's and injuries. The
district court has jurisdiction over all torts and injuries
committed on the high seas, and in ports or harbors within the
ebb and flow of the tide. Vide 1 Wheat. R. 304; 2 Gall. R. 389;
1 Mason, 96; 3 Mason., 242; 4 Mason, 380; 18 Johns. R. 257.
122. A court of admiralty has jurisdiction to redress personal
wrongs committed on a passenger, on the high seas, by the master
of a vessel, whether those wrongs be by direct force or
consequential injuries. 3 Mason, 242.
123. The admiralty may decree damages for an unlawful capture
of an American vessel by a French privateer, and may proceed by
attachment in ?-em. Bee, 60.
124. It has jurisdiction in cases of maritime torts, in
personam as well as in rem. 10 Wheat. 473,
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125. This court has also jurisdiction of petitory suits to
reinstate owners of vessels who have been displaced from their
possession. 5 Mason, 465. It exercises jurisdiction of all torts
and injuries committed on the high seas, and in ports or barbors
within the flow or ebb of the tide. 2 Gallis. 398; Bee, 51.
126. A father, whose minor son has been tortiously abducted and
seduced on a voyage on the high seas, may sue, in the admiralty,
in the nature of an action per quod, &c., also for wages earned
by such son in maritime service. 4 Mason, 380.
127. - (4.) Suits on contracts. As a court of admiralty, the
district court has a jurisdiction, concurrent with the courts of
common law, over all maritime contracts, wheresoever the same may
be made or executed, or whatsoever be the form of the contract. 2
Gallis. 398. It may enforce the performance of charter-parties
for foreign voyages, and by proceeding in rem, a lien for freight
under them. 1 Sumn. 551; 2 Sumn. 589. It has jurisdiction over
contracts for the hire of seamen, when the service is
substantially performed on the sea, or on waters within the flow
and reflow of the tide 10 Wheat. 428; 7 Pet. 324; Bee, 199;
Gilp. 529. But unless the services are essentially maritime, the
jurisdiction does not attach. 10 Wheat. 428; Gilp. 529.
128. The master of a vessel may sue in the admiralty, for his
wages; and the mate, who on his death succeeds him, has the same
right. 1 Sumn. 157; 9 Mason, 161; 4 Mason, 196. But when the
services for which he sues have not been performed by him as
master, they cannot be sued for in admiralty. 3 Mason, 161.
129. The jurisdiction of the admiralty attaches when the
services are performed on a ship in port where the tide ebbs and
flows. 7 Pet. 324; Gilp. 529.
130. Seamen, employed on board of steamboats and lighters
engaged in trade or commerce on tide-water, are within the
admiralty jurisdiction. But those in ferryboats are not so. Gilp.
532 Gilp. 203.
131. Wages may be recovered in the admiralty by the pilot,
deck-hands, engineer, and firemen, on board of a steamboat. Gilp.
505.
132. But unless the service of those employed contribute in
navigating the vessel, or to its preservation, they cannot sue
for their wages in the admiralty; musicians on board of a
vessel, who are hired and employed as such, cannot therefore
enforce a payment of their wages by a suit in rem in the
admiralty. Gilp. 516.
133. - 2d. The extraordinay jurisdiction of the district court,
as a court of admiralty, or that which is vested by various acts
of congress, consists of -
(1.) Seizures under the laws of imposts, navigation, or trade
of the United States. It is enacted, by the Act of September 24,
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1789, §9, that the district court shall have exclusive original
cognizance of all civil causes of admiralty and maritime
jurisdiction, including all seizures under laws of impost,
navigation, or trade of the United States, when the seizures are
made on waters which are navigable from the sea, by vessels of
ten or more tons burden, within their respective districts, as
well as upon the high seas; saving to suitors, in all cases, the
right of a common law remedy, when the common law is competent to
give it.
134. Causes of this kind are to be tried by the district court,
and not by a jury. 4 Cranch, 438; 5 Cranch, 281; 1 Wheat. 9,
20: 7 Cranch, 112; 3 Dall. 297.
135. It is the place of seizure, and not the committing of the
offence, that, under the Act of September 24, 1789, gives
jurisdiction to the court; 4 Cranch, 443 5 Cranch, 304; for
until there has been a seizure, the forum cannot be ascertained.
9 Cranch, 289.
136. When the seizure has been voluntarily abandoned, it loses
its validity, and no jurisdiction attaches to any court, uuless
there be a new seizure. 10 Wheat. 325 1 Mason, 361.
137. - (2.) The. admiralty jurisdiction, expressly vested in
the district court, embraces, also, captures made within the
jurisdictional limits of the United States. By the Act of April.
20, 1818, §7, the district court shall take cognizance of
complaints, by whomsoever instituted, in cases of captures made
within the waters of the United States, or within a marine league
of the coasts and shores thereof.
138. - 2. The civil jurisdiction of the district court extends
to cases of seizure on land, under the laws of the United States,
and in suits for penalties and forfeitures incurred under the
laws of the United States.
139. The Act of September 24, 1789, §9, gives to the district
court exclusive original cognizance of all seizures made on land,
and other waters than as aforesaid, (that is, those which are
navigable by vessels of ton or more tons burden, within their
respective districts, or on the high seas,) and of all suits for
penalties and forfeitures incurred under the laws of the United
States.
140. In all cases of seizure on land, the district court sits
as a court of common law, and its jurisdiction is entirely
distinct from that exercised in case of seizure on waters
navigable by vessels of ten tons burden and upwards. 8 Wheat.
395.
141. Seizures of this kind are triable by jury; they are not
cases of admiralty and maritime jurisdiction. 4 Crauch, 443.
142. - 3. The civil jurisdiction of the district court extends
also to cases in which an alien sues for a tort, in violation of
the law of nations, or a treaty of tho United States.
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143. The Act of September 24, 1789, §9, directs that the
district court shall have cognizance, concurrent with the courts
of the several states, or the circuit courts, as the case may be,
of all causes where an alien sues for a tort only, in violation
of the law of nations, or of a treaty of the United States.
144. - 4. The civil jurisdiction of this court extends further
to suits instituted by the United States. By the 9th section of
the Act of September 24, 1789, the district court shall also have
cognizance, concurrent as last mentioned, of all suits at common
law, where the United States sue, and the matter in dispute
amounts, exclusive of costs, to the sum or value of one hundred
dollars. And by the Act of March 3; 1815, §4, it has cognizance,
concurrent with the courts and magistrates of the several states,
and the circuit courts of the United States, of all suits at
common law where the United States, or any officer thereof, under
the authority of any act of congress sue, although the debt,
claim, or other matter in dispute, shall not amount to one
hundred dollars.
145. These last words do not confine the jurisdiction given by
this act to one hundred dollars, but prevent it from stopping at
that sum: and consequently, suits for sums over one hundred
dollars are cognizable in the district, circuit, and state
courts, and before magistrates, in the cases here mentioned. By
virtue of this act, these tribunals have jurisdiction over suits
brought by the postmaster-general, for debts and balances due the
general post office. 12 Wheat. 147; 2 Pet. 447; 1 Pet. 318.
146.-5. This court has jurisdiction of actions by and against
consuls or vice-consuls, exclusively of the courts of the several
states, except for offences where other punishment than whipping,
not exceeding thirty stripes, a fine not exceeding one hundred
dollars, or a term of imprisonment not exceeding six months, is
inflicted.
147. For offences above this description formerly the circuit
court only had jurisdiction in cases of consuls. 5 S. & R. 545;
2 Dall. 299. But by the Act of August 23, 1842, the district
courts shall have concurrent jurisdiction with the circiut courts
of all crimes and offences against the United States, the
punishment of which is not capital. And by the, Act of February
28, 1839, §5, the punishment of whipping is abolished. See also
the Act of 28th Sept. 1850, making appropriations for the naval
service, &c.
148. - 6. The jurisdiction of the district court under the
bankrupt laws will be found under the title Bankrupt.
149. - 7. The district courts have equitable jurisdiction in
certain cases. 150. By the first section of the Act of February
13, 1807, the judges of the district courts of the United States
shall have as full power to grant writs of injunctions, to
operate within their respective districts, as is now exercised by
any of the judges of the supreme court of the United States.
under the same rules, regulations, and restrictions, as are
prescribed by the several acts of congress establishing the
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judiciary of the United States, any law to the contrary
notwithstanding. Provided, that the same shall not, unless so
ordered by the circuit court, continue longer than to the circuit
then next ensuing; nor shall an injunction be issued by a
district judge in any case, where the party has had a reasonable
time to apply to the circuit court for the writ.
151. An injunction may be issued by the district judge under
the Act of March 3, 1820, SSSS 4, 5, where proceedings have taken
place by warrant and distress against a debtor to the United
States or his sureties, subject by §6, to appeal to the circuit
court from the decision of such district judge in refusing or
dissolving the injunction, if such appeal be allowed by a justice
of the supreme court. On which, with an exception as to the
necessity of an answer on the part of the United States, the
proceedings are to be as in other cases.
152. The Act of September 24, 1789, §14, vests in the judges of
the district courts, power to grant writs of habeas corpus, for
the purpose of an inquiry into the cause of commitment.
153. Other acts give them power to issue writs, make rules,
take depositions, &c. The acts of congress already treated of
relating to the privilege of not being sued out of the district
of which the defendant is an inhabitant, or in which he is found,
restricting suits by assignees, and various others, apply to the
district court as well as to the circuit court.
154. Bythe 9th section of the Act of September 24, 1789, the
trial of issues in fact in the district courts, in all causes
except civil causes of admiralty and maritime jurisdiction, shall
be by jury. Serg. Const. Law, 226, 227.
(2.) The criminal jurisdiction of the district court.
155. By the Act of August 23, 1842, §3, it is enacted that the
district courts of the United States shall have concurrent
jurisdiction with the circuit courts, of all crimes and offences
against the United States, the punishment of which is not
capital.
156. There is a class of district courts of a peculiar
description. These exercise the power of a circuit court, under
the same regulations as they were formerly exercised by the
district court of Kentucky, which was the first of the kind.
157. The Act of September 24, 1789, §10, gives the district
court of the Kentucky district, besides the usual jurisdiction of
a district court, the jurisdiction of all causes, except of
appeals and writs of error, thereinafter made cognizable in a
circuit court, and writs of error and appeals were to lie from
decisions therein to the supreme court, and under the, same
regulations. By the 12th section, authority was given to remove
cases from a state court to such court, in the same manner as to
a circuit court.
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3. The territorial courts.
158. The act to establish the territorial government of Oregon,
approved August 14, 1848, establishes the judicial power of the
said territory as follows: §9. The judicial power of said
territory shall be vested in a supreme court, district courts,
probate courts, and in justices of the peace. The supreme court
shall consist of a chief justice and two associate justices, any
two of whom shall constitute a quorum, and who shall hold a term
at the seat of government of said territory annually; and they
shall hold their offices during the period of four years, and
until their successors shall be appointed and qualified. The said
territory shall be divided into three judicial districts, and a
district court shall be held in each of said districts by one of
the just of the supreme court, at such times and places as may be
prescribed by law; and the said judges shall after their
appointments, respectively, reside in the districts which shall
be assigned them The jurisdiction of the several courts herein
provided for, both appellate and original, and that of the
probate courts and of justices of the peace, shall be as limited
by law: Provided, That justices of the peace shall not have
jurisdiction of any case in which the title to land shall in
anywise come in question, or where the debt or damages claimed
shall exceed one hundred dollars; and the said supreme and
district courts, respectively, shall possess chancery, as well as
common law, jurisdiction. Each district court, or the judge
thereof, shall appoint its clerk, who shall also be the register
in chancery, and shall keep his office at the place where the
court may be held. Writs of error, bills of exception, and
appeals, shall be allowed in all cases from the final decisions
of said district courts to the supreme court, under such
regulations as may be prescribed by law; but in no case removed
to the supreme court shall trial by jury be allowed in said
court. The supreme court, or the justices thereof, shall appoint
its own clerk, and every clerk shall hold his office at the
pleasure of the court for which he shall have been appointed.
Writs of error and appeals from the final decisions of the said
supreme court shall be allowed, and way be taken to the supreme
court of the United States, in the same manner, and under the
same regulations, as from the circuit courts of the United
States, where the value of the property, or the amount in
controversy, to be ascertained by the oath or affirmation of
either party, or other competent witness, shall exceed two
thousand dollars; and in all cases where the constitution of the
United States, or acts of congress, or a treaty of the United
States, is brought in question; and each of the said district
courts shall have and exercise the same jurisdiction in all cases
arising under the constitution of the United States, and the laws
of said territory, as is vested in the circuit and district
courts of the United States writs of error and appeal in all such
cases shall be made to the supreme court of said territory, the
same as in other cases. Writs of error and, appeals from the
final decisions of said supreme court shall be allowed, and may
be taken to the supreme court of the United States, in the same
manner as from the circuit courts of the United States, where the
value of the property, or the amount in controversy, shall exceed
two thousand dollars; and each of said district courts shall
Bouvier's Law Dictionary : C3 : Page 28 of 56
have and exercise the same jurisdiction in all cases arising
under the constitution and laws of the United States, as is
vested in the circuit and district courts of the United States,
and also of all cases arising under the laws of the said
territory, and otherwise. The said clerk shall receive, in all
such cases, the same fees which the clerks of the district courts
of the late Wisconsin Territory received for similar services.
159. - §10. There shall be appointed an attorney for said
territory, who shall continue in office for four years, and until
his successor shall be appointed and qualified, unless sooner
removed by the president, and who shall receive the same fees and
salary as were provided by law for the attorney of the United
States for the late territory of Wisconsin. There shall also be a
marshal for the territory appointed, who shall hold his office
for four years, and until his successor shall be appointed and
qualified, unless sooner removed by the president, and who shall
execute all processes issuing from the said courts, when
exercising their jurisdiction as circuit and district courts of
the United States; he shall perform the duties, be subject to
the same regulation and penalties, and be entitled to the same
fees, as were provided by law for the marshal of the district
court of the United States, for the present [late] territory of
Wisconsin; and shall, in addition, be paid two hundred dollars
annually as a compensation for extra services.
160. The act to establish a territorial government for Utah,
approved September 9, 1850, contains the following provisions
relative to this subject. They are the same in most respects with
the preceding. Section 9 of this act provides, " That the
judicial power of said territory shall be vested in a supreme
court, district courts, probate courts, and in justices of the
peace. The supreme court shall consist of a chief justice and two
associate justices, any two of whom shall constitute a quorum,
and who shall hold a term at the seat of government of said
territory annually, and they shall hold their offices during the
period of four years. The said territory shall be divided into
three judicial districts, and a district court shall be held in
each of said districts by one of the justices of the supreme
court, at such time and place as may be prescribed by law; and
the said judges shall, after their appointments, respectively,
reside in the districts which shall be assigned them. The
jurisdiction of the several courts herein provided for, both
appellate and original, and that of the probate courts and of
justices of the peace, shall be as limited by law: Provided, That
justices of the peace shall not have jurisdiction of any matter
in controversy when the title or boundaries of land may be in
dispute, or where the debt or sum claimed shall exceed one
hundred dollars; and the said supreme and district courts,
respectively, shall possess chancery as well as common law
jurisdiction. Each district court, or the judge thereof, shall
appoint its clerk, who shall also be the register in chancery,
and shall keep his office at the place where the court may be
held. Writs of error, bills of exception, and appeals shall be
allowed in all cases from the final decisions of said district
courts to the supreme court, under such regulations as may be
prescribed by law; but in no case removed to the supreme court
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shall trial by jury be allowed in said court. The supreme court,
or the justices thereof, shall appoint its own clerk, and every
clerk shall hold his office at the pleasure of the court for
which be shall have been appointed. Writs of error, and appeals
from the final decisions of said supreme court, shall be allowed,
and may be taken to the supreme court of the United States, in
the same manner and under the same regulations as from the
circuit courts of the United States, where the value of the
property or the amount in controversy, to be ascertained by the
oath or affirmation of either party, or other competent witness,
shall exceed two thousand dollars, except only that, in all,
cases involving title to slaves, the said writs of error or
appeals shall be allowed and decided by the said supreme court,
without regard to the value of the matter, property, or title in
controversy; and except, also, that a writ of error or appeal
shall also be allowed to the supreme court of the United States,
from the decisions of the said supreme court created by this act,
or of any judge thereof, or of the district courts created by
this act, or of any judge thereof, upon any writ of habeas corpus
involving the question of personal freedom: and each of the said
district courts shall have and exercise the same jurisdiction in
all cases arising under the constitution and laws of the United
States as is vested in the circuit and district courts of the
United States; and the said supreme and district courts of the
said territory, and the respective judges thereof, shall and may
grant writs of habeas corpus in all cases in which the same are
granted by the judges of the United States in the District of
Columbia; and the first six days of every term of said courts,
or so much thereof as shall be necessary, shall be appropriated
to the trial of causes arising under the said constitution and
laws; and writs of error and appeal, in all such cases, shall be
made to the supreme court of said territory, the same as in other
cases. The said clerk shall receive in all such cases the same
fees which the clerks of the district courts of Oregon territory
now receive for similar services.
161. "There shall be appointed an attorney for said territory,
who shall continue in office for four years, unless sooner
removed by the president, and who shall receive the same fees and
salary as the attorney of the United States for the present
territory of Oregon. There shall also be a marshal for the
territory appointed, who shall hold his office for four years,
unless sooner removed by the president, and who shall execute all
processes issuing from the said courts, when exercising their
jurisdiction as circuit and district courts of the United States:
he shall perform the duties, be subject to the same regulation
and penalties, and be entitled to the same fees as the marshall
of the district court of the United States for the present
territory of Oregon; and shall, in addition, be paid two hundred
dollars annually as a compensation for extra sci-vices."
COURTESY, OR CURTESY, Scotch law. A right which vests in the
hushand, and is in the nature of a life-rent. It is a counterpart
of the terce. Courtesy requires, 1st. That there shall have been
a living child born of the marriage, who is heir of the wife, or
who, if surviving, would have been entitled to succeed. 2d. That
the wife shall have succeeded to the subjects in question as heir
Bouvier's Law Dictionary : C3 : Page 30 of 56
either of line, or of talzie, or of provision. 1 Bell's Com. 61;
2 Ersk. 9, 53. See Curtesy.
COURTESY OF ENGLAND. See Estates by the Courtesy.
COUSIN, domest. rel. Cousins are kindred who are the issue of
two brothers or two sisters, or of a brother and a sister. Those
who descend from the brother or sister of the father of the
person spoken of are called patternal cousins; maternal cousins
are those who are descended from the brothers or sisters of the
mother. Vide 2 Bro. C. C. 125; 1 Sim. & Stu. 301; 3 Russ. C. C.
140; 9 Sim. R. 386, 457.
COVENANT, remedies. The name of an action instituted for the
recovery of damages for the breach of a covenant or promise under
seal. 2 Ld. Raym. 1536
F; N. B. 145 Com. Dig. Pleader, 2 V 2 Id. Covenant, A 1; Bouv.
lnst. Index, h. t.
2. The subject will be considered with reference, 1. To the
kind of claim or obligation on which this action may be
maintained. 2. The form of the declaration. 3. The plea. 4. The
judgment.
3.- 1. To support this action, there must be a breach of a
promise under seal. 6 Port. R. 201; 5 Pike, 263; 4 Dana, 381;
6 Miss. R. 29. Such promise may be contained in a deed-poll, or
indenture, or be express or implied by. law from the terms of the
deed; or for the performance of something in futuro, or that
something has been done; or in some cases, though it relate to
something in presenti, as that the covenantor has, a good title.
2 Saund. 181, b. Though, in general, it is said that covenant
will not lie on a contract inpresenti, as on a covenant to stand
seized, or that a certain horse shall henceforth be the property
of another. Plowd. 308; Com. Dig. Covenant, A 1; 1 Chit. PI..
110. The action of covenant is the peculiar remedy for the
non-performance of a promise under seal, where the damages are
unliquidated, and depend in amount on the opinion of a jury, in
which case neithor debt nor assumpsit can be supported but
covenant as well as the action of debt, may be maintained upon a
single bill for a sum certain. When the breach of the covenant
amounts to misfeasance, the covenantee has an election to proceed
by action of covenant, or by action on the case for a tort, as
against a lessee, either during his term or afterwards, for
waste; 2 Bl. R. 1111; 2 Bl. R. 848; but this has been
questioned. When the contract under seal has been enlarged by
parol, the substituted agreement will be considered, together
with the original agreement, as a simple contract. 2 Watt's R.
451 1 Chit. Pl. 96; 3 T. R. 590.
4. - 2. The declaration must state that the contract was under
seal and it should make profert of it, or show some excuse for
the omission. 3 T. 11. 151. It is not, in general, requisite to
state tho consideration of the defendant's promise, because a
contract under seal usually imports a consideration; but when
the performance of the consideration constitutes a condition
precedent, such performance must be averred. So much only of the
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deed and covenant should be set forth as is essential to the
cause of action: although it is usual to declare in the words of
the deed, each covenant may be stated as to its legal effect. The
breach may be in the negative of the covenant generally 4 Dall.
R. 436; or, according to the legal effect, and sometimes in the
alternative and several breaches may be assigned at common law.
Damages being the object of the suit, should be laid sufficient
to cover the real amount. Vide 3 Serg. & Rawle, 364; 4 Dall. R.
436 2 Yeates' R. 470 3 Serg. & Rawle, 564, 567; 9 Serg. &
Rawle, 45.
5. - 3. It is said that strictly there is no general issue in
this action, though the plea of non est factum has been said by
an intelligent writer to be the general issue. Steph. Pl. 174.
But this plea only puts in issue the fact of scaling the deed. 1
Chit. Pl. 116. Non infregit conventionem, and nil debet, have
both been held to be insufficient. Com. Dig. Pleader, 2 V 4. In
Pennsylvania, by a practice peculiar to that state, the defendant
may plead covenants and under this. plea, upon notice of the
special matter, in writing, to the plaintiff, without form, he
may give anything in evidence which he might have pleaded. 4
Dall. 439; 2 Yeates, 107; 15 Serg. & Rawle, 105. And this
evidence, it seems, may be given in the circuit courts of the
United States in that state without notice, unless called for. 2
W. C. C. R. 4 5 6.
6. - 4. The judgmeut is that the plaintiff recover a named sum
for his damages, which he has sustained by reason of the breach
or breaches of covenant, together with costs.
COVENANT, contracts. A covenant, conventio, in its most general
signification, means any kind of promise or contract, whether it
be made in writing or by parol. Hawk. P. C. b. 1, c. 27, §7, s.
4. In a more technical sense, and the one in which it is here
considered, a covenant is an agreement between two or more
persons, entered into in writing and under seal, whereby either
party stipulates for the truth of certain facts, or promises to
perform or give something to the other, or to abstain from the
performance of certain things. 2 Bl. Com. 303-4; Bac. Ab.
Covenant, in pr.; 4 Cruise, 446; Sheppard, Touchs. 160; 1
Harring. 151, 233 1 Bibb, 379; 2 Bibb, 614; 3 John. 44; 20
John. 85; 4 Day, 321.
2. It differs from an express assumpsit in this, that the
former may be verbal, or in writing not under seal, while the
latter must always be by deed. In an assumpsit, a consideration
must be shown; in a covenant no consideration is necessary to
give it validity, even in a court of equity. Plowd. 308; 7 T. R.
447; 4 Barn. & Ald. 652; 3 Bingh. 111.
3. It is proposed to consider first, the general requisites of
a covenant; and secondly, the several kinds of covenants.
4. - §1. The general requisites are, 1st. Proper parties. 2d.
Words of agreement. 3d A legal purpose. 4th. A proper form.
5. - 1st. The parties must be such as by law can enter into a
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contract. If either for want of understanding, as in the case of
an idiot or lunatic; or in the case of an infant, where the
contract is not for his benefit; or where there is
understanding, but owing to certain causes, as coverture, in the
case of a married woman, or duress, in every case, the parties
are not competent, they cannot bind themselves. See Parties to
Actions.
6. - 2d. There must be an agreement. The assent or consent must
be mutual for the agreement would be incomplete if either party
withheld his assent to any of its terms. The assent of the
parties to a contract necessarily supposes a free, fair, serious
exercise of the reasoning faculty. Now, if from any cause, this
free assent be not given, the contract is not binding. See
Consent.
7. - 3d. A covenant against any positive law, or public policy,
is, generally speaking, void. See Nullity; Shep. Touchs. 163. As
an example of the first, is a covenant by one man that he will
rob another; and of the last, a covenant by a merchant or
tradesman that he will not follow his occupation or calling.
This, if it be unlimited, is absolutely void but, if the covenant
be that he shall not pursue his business in a particular place,
as, that he will not trade in the city of Philadelphia, the
covenant is no longer against public policy. See Shep. Touchs.
164. A covenant to do an impossible thing is also void. Ib.
8. - 4th. To make a covenant, it must, according to the
definition above given, be by deed, or under seal. No particular
form of words is necessary to make a covenant, but any words
which manifest the intention of the parties, in respect to the
subject matter of the contract, are sufficient. Sec numerous
examples in Bac. Abr. Covenant, A Selw. N. P. 469; Com. Dig.
Covenant, A 2; 3 Johns. R. 44; 5 Munf. 483.
9. In Pennsylvania, Delaware, and Missouri, it is declared by
statute that the words grant, bargain, and sell, shall amount to
a covenant that the grantor was seised of an estate in fee, free
from all incumbrances done or suffered by him, and for quiet
enjoyment against his acts. But it has been adjudged that those
words in the Pennsylvania statute of 1715, (and the decision will
equally apply to the statutory language in the other two states,)
did not amount to a general warranty, but merely to a covenant
that the grantor had not done any act, nor created any
incumbrance whereby the estate might be defeated. 2 Bin. 95; 11
S. & R. 111, 112; 4 Kent, Com. 460.
10. - §2. The several kinds of covenants. They are, 1. Express
or implied. 1. An express, covenant, or a covenant in fact, is
one expressly agreed between the parties and inserted in the
deed. The law does not require any particular form to create an
express covenant. The formal word "covenant" is therefore not
indispensably requisite. 2. Mod. 268; 3 Keb. 848; 1 Leon, 324;
1 Bing. 433; 8 J. B. Moore, 546; 1 Ch. Cas. 294; 16 East, 352;
12 East, 182 n.; 1 Bibb, 379; 2 Bibb 614; 3 John. 44; 5
Cowen, 170; 4 Day, 321 4 Conn. 508; 1 Harring. 233. The words
"I oblige;" "agree," 1 Ves. 516; 2 Mod. 266; or, "I bind myself
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to pay so much such a day, and so much such another day;" Hardr.
178; 3 Leon. 119, Pl. 199; are held to be covenants; and so
are the word's of a bond. 1 Ch. Cas. 194. But words importing
merely an order or direction that other persons should pay a sum
of money, are not a coveiaant. 6 J. B. Moore, 202, n. (a.)
11. - 1. An implied covenant is one which the law intends and
implies, though it be not expressed in words. 1 Common Bench Rep.
402; co. Lit. 139, b; Vaugnan's Rep. 118; Rawle on Covenants,
364. There are some words which of themselves do not import an
express covenant, yet being made use of in certain contracts,
have a similar operation and are called covenants in law. They
are as effectually binding on the parties as if expressed in the
most unequivocal terms. Bac. Ab. Covenant, B. A few examples will
fully explain this. If a lessor demise and grant to his lessee a
house or lands for a certain term, the law will imply a covenant
on the part of the lessor, that the lessee shall during the term
quietly enjoy the same against all incumbrances. Co. Litt. 384.
When in a lease the words "grant," 1 Mod. 113 Freem. 367; Cro.
Eliz. 214; 4 Taunt. 609; "grant and demise, " 4 Wend. 502;
"demise," 10 Mod. 162; 4 Co. 80; Hob. 12; or " demiserunt," I
Show. 79 1 Salk. 137, are used, they are so many instances of
implied covenants. And the words "yielding and paying" in a
lease, imply a covenant on the part of lessee, that he will pay
the rent. 9 Verm. 151; 3 Penn. 461, 464.
12. - 2. Real and personal. 1st. A real covenant is one which
has for its object something annexed to, or inherent in, or
connected with land or other property. Co Litt. 334; enk 241;
Cruise, Dig. tit. 32, c. 25, s. 22; Platt. on Cov. 60, 61; 2
Bl. Com. 304. A covenant real, which necessarily runs with the
land, as to pay rent, not to cut timber, and the like, is said to
be an inherent covenant. Shep. To. 161. A covenant real runs with
the land and descends to the heir; it is also transferred to a
purchaser. Such covenants are said to run with the land, so that
he who has the one is subject to the other. Bac. Ab. Covenants, E
2. See 2 Penn. 507; 10 Wend 180; 12 Mass. 306; 17 Mass. 586;
5 Cowen, 137; 5 Ham. 156; 5 Conn. 497; 1 Wash. C. C. 375; 8
Cowen 206; 1 Dall. 210; 11 Shep. 283; 6 Met. 139; 3 Mete. 81;
3 Harring. 338; 17 Wend. 136.
13. - 2. As commonly reckoned, there are five covenants for
title, viz: 1. Covenant for seisin. 2. That the grantor has
perfect right to convey. 3. That the grantee shall quietly
possess and enjoy the premises without interuption, called a
covenant for quiet enjoyment. 4. The covenant against
incumbrances. 5. The covenant for futher assurance. 6. Besides
these covenants, there is another frequently resorted to in the
United Staes, which is relied on more, perhaps, than any other,
called the covenant of warranty. See Rawle on Covenants for
Title, where the import and effect of these covenants are
elaborately and luminously discussed.
14. - 3. A personal covenant relates only to matters personal,
as distinguished from real, and is binding on the covenantur
during life, and on his personal representatives after his
decease, in respect of his assets. According to Sir William
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Blackstone, a personal convenant may be transformed into a real,
by the mere circumstance of the heirs being named therein, and
having assets by descent from the covenantor. 2 Bl. Com 304. A
covenant is personal in another sense, where the covenantor is
bound to fulfil the covenant himself; as, to teach an
apprentice. F.N.B. 340, A.
15. Personal covenants are also said to be transitive and
intransitive; the former, when the duty of performing them
passes to the covenantor's representatives; the latter, when it
is limited to himself; as, in the case of teaching an
apprentice. Bac. Ab. h.t.
16. As they affect each other in the same deed, covenants may
be divided into three classes. 1st. Dependent covenants are those
in which the performance, of one depends on the performance of
the other; there may be conditions which must be performed
before the other party is liable to an action on his covenant. 8
S. & R. 268; 4 Conn. 3; 1 Blackf. 175; John. 209; 2 Stew. &
Port. 60; 6 Cowen 296; 3 Ala. R. 330; 3 Pike 581; 2 W. & S.
227; 5 Shep. 232; 11 Verm. 549; 4 W. C. C. 714; Platt on Cov.
71; 2 Dougl. 689; Lofft, 191; 2 Selw. N. P. 443, 444. To
ascertain whether covenants are dependent or not, the intention
of the parties is to be sought for and regarded rather than the
order or time in which the acts are to be done, or the structure
of the instrument, or the arrangements of the covenant. 4 Wash.
C. C. 714; 1 Root, 170; 4 Rand. 352; 4 Rawle, 26; 5 Wend.
496; 2 John. 145; 13 Mass. 410; 2 W. & S. 227; 4 W. & S. 527;
Willis, 157; 7 T. R. 130; 8 T.R. 366; 5 B. & P. 223; 1 Saund.
320 n.
17. - 2d. Some covenants are mutual conditions to be performed
at the same time; these are concurrent covenants. When, in these
cases, one party is redy and offers to perform his part, and the
other refuses or neglects to perform his, he who is ready and
offers, has fulfilled his engagement, and may maintain an action
for the default of the other, though it is not certain that
either is obliged to do the first act. 4 Wash. C. C. 714; Dougl.
698; 2 Selw. N. P. 443; Platt. on Cov. 71.
18.- - 3d. Covenants are independent or mutual, when either
party may recover damages from the other for the injury he may
have received by a breach of the covenants in his favor, and when
it is no excuse for the defendant to allege a breach of the
covenants on the part of the plaintiff. 2 Wash. C. C. R. 456; 5
Shepl. 372; 4 Leigh, 21; 3 Watts & S. 300; 13 Mass. 410; 2
Pick. 300; 2 John. 145; 10 John. 203; Minor 21; 2 Bibb, 15;
3 Stew. 361; 1 Fairf. 49; 6 Binn. 166; 2 Marsh. 429; 7 John.
249; 5 Wend. 496; 3 Miss. 329; 2 Har. & J. 467; 4 Har. & J.
285; 2 Marsh. 429; 4 Conn. 3.
19. Covenants are affirmative and negative. 1st. An affirmative
covenant is one by whicb the covenantor binds himself that
something has already been done or shall be performed hereafter.
Such L convenant will not deprive a man of a right lawfully
enjoyed by him independently of the covenant; 5 as, if the
lessor agreed with the lessee that he shall have thorns for
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hedges growing upon the land, by assignment of the lessor's
bailiff; here no restraint is imposed upon the exercise of that
liberty which the law allows to the lessee, and therefore he may
take hedge-bote without assignment. Dy. 19 b, pl. 115; 1 Leon,
251.
20. - 2d. A negative covenant is one where the party binds
himself that he has not performed and will not perform a certain
act; as, that he will not encumber. Such a covenant cannot be
said to be performed until it becomes impossible to break it. On
this ground the courts are unwilling to construe a covenant of
this kind to be a condition precedent. Therefore, where a tailor
assigned his trade to the defendant, and covenanted thenceforth
to desist from carrying on the said business with any of the
customers, and the defendant in consideration of the performance
thereof, covenanted to pay him a life annuity of 190, it was held
that if the words "in consideration of the performance thereof,"
should be deemed to amount to a condition precedent, the
plaintiff would never obtain his annuity; because as at anytime
during his life he might exercise his former trade, until his
death it could never be ascertained whether he had performed the
covenant or not. 2 Saund. 156; 1 Sid. 464; 1 Mod. 64; 2 Keb.
674. The defendant, however, on a breach by plaintiff, might have
his remedy by a crossaction of covenant. There is also a
difference between a negative covenant, which is only in
affirmance of an affirmative covenant precedent, and a negative
covenant which is additional to the affirmative covenant. 1 Sid.
87; 1 Keb. 334, 372. To a covenant of the former class a plea of
performance generally is good, but not to the latter; the
defendant in that case must plead specially. Id.
21. Covenants, considered with regard to the parties who are to
perform them, are joint or several.
1st. A joint covenant is one by which several parties agree to
perform or do a thing together. In this case although there are
several covenantors there is but one contract, and if the
covenant be broken, all the covenantors living, must be sued; as
there is not a separate obligation of each, they cannot be sued
separately.
22. - 2d. A several covenant is one entered into by one person
only. It frequently happens that a number of persons enter into
the same contract, and that each binds himself to perform the
whole of it; in such case, when the Contract is under seal, the
covenantors are severally bound for the performance of it. The
terms usually employed to make a several covenant are "
severally," or " each of us." In practice, it is common for the
parties to bind themselves jointly and severally, and then the
covenant is both joint and several. Vide Hamm. on Parties 19;
Cruise, Dig. tit. 32, c. 25, s. 18; Bac. Ab. Covenant D.
23. Covenants are executed or executory.
1st. An executed covenant is one which relates to an act
already performed. Shep. To. 161.
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24. - 2d. An executory covenant is one to be performed at a
future time. Shep. To. 161.
25. Covenants are obligatory or declaratory.
1st. An obligatory covenant is one which is binding on the
party himself, and shall never be construed to raise a use. 1
Sid. 27; 1 Keb. 334.
26. - 2d. A declaratory covenant is one which serves to limit
and direct uses. 1 Sid. 27; 1 Heb. 334.
27. Covenants are principal and auxiliary.
1st. A principal covenant is one which relates directly to the
principal matter of the contract entered into between the
parties; as, if A covenants to serve B for one year.
28. - 2d. An auxiliary covenant is one, which, not relating
directly to the principal matter of the contract between the
parties, yet relates to something connected with it; as, if A
covenants with B, that C will perform his covenant to serve him
for one year. In this case, if the principal covenant is void,
the auxiliary is discharged. Anstr. 256.
29. Covenants are legal or illegal. 1st. A legal covenant is
one not forbidden by law. Covenants of this kind are always
binding on the parties.
30. - 2d. An illegal covenant is one forbidden by law, either
expressly or by implication. A covenant entered into, in
violation of, the express provision of a statute is absolutely
void. 5 Har. & J. 193; 5 N. H. Rep. 96; 6 N. H. Rep. 225; 4
Dall. 298; 6 Binn. 321; 4 S.& R. 159; 1 Binn. 118; 4 Halst.
252. A covenant is also void, if it be of immoral nature; as, a
covenant for future illicit intercourse and cohabitation; 3
Monr. 35; 3 Burr. 1568; S. C. 1 Bl. Rep. 517; 1 Esp. 13; 1 B.
P. 340; or against public policy; 5 Mass. 385; 7 Greenl. 113;
4 Mass. 370; 5 Halst. 87; 4 Wash. C. C. 297; 11 Wheat. 258; 3
Day, 145; 2 McLean, 464; 7 Watts, 152; 5 Watts & S. 315; 5
How. Miss. 769; Geo. Decis. part 1, 39 in restraint of trade,
when the restraiut is general; 21 Wend. 166; 19 Pick. 51; 6
Pick. 206; 7 Cowen, 307; or fraudulent between the parties; 5
Mass. 16; 4 S. & R. 488; 4 Dall. 250; 7 W. & S. 111; or third
persons; 3 Day, 450; 14 S. & R. 214; 3 Caines, 213; 15 Pick.
49; 2 John. 286 12 John. 306.
31. Covenants, in the disjunctive or alternative, are those
which give the covenantor the choice of doing, or the covenontee
the choice of having, performed one of two or more things at his
election; as, a covenant to make a lease to Titus, or pay him
one hundred dollars on the fourth day of July, as the covenantor,
or the covenantee, as the case may be, shall prefer. Platt on
Cov. 21.
32. Collateral covenants are such as concern some collateral
thing, which does not at all, or not so immediately relate to the
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thing granted; as, to pay a sum of money in gross, that the
lessor shall distrain for rent, on some other land than that
which is demised, or the like. Touchs. 161; 4 Burr. 2446; 2
Wils. R. 27; 1 Ves. R. 56. These covenants are also termed
covenants in gross. Vide 5 Barn. & Ald. 7, 8; Platt on Cov. 69,
70.
COVENANT NOT TO SUE. This is a covenant entered into by a party
who had a cause of action at the time of making it, and by which
he agrees not to sue the party liable to such action.
2. Covenants of this nature, are either covenants perpetual not
to sue, or covenants not to sue for a limited time; for example,
seven years.
3. - §1. Covenants perpetual not to sue. These will be
considered with regard to their effect as relates, 1. To the
covnantee; 2. To his partners or co-debtors.
4. - 1. A covenant not to sue the covenantee at all, has the
effect of a release to him, and may be pleaded as such to avoid a
circuity of action. Cro. EIiz. 623; 1 T. R. 446; 8 T. R. 486;
1 Ld. Raym 688; S. C. Holt, 178; 2 Salk. 575; 3 Salk. 298; 12
Mod. 415, 548; 7 Mass. 153, 265; 16 Mass. 24; 17 Mass. 623.
And see 11 Serg. & Rawle, 149.
5. - 2. Where the covenantee is jointly and severally bound
with another to the covenantor, a covenant not to sue him will be
no protection to the other wbo may be sued on his several
obligations and such a covenant does not mount to a release to
him. 2 Salk. 575; S. C. 12 Mod. 551; 8 T. R. 168; 6 Munf. 6;
1 Com. 139; 4 Greenl. 421; 2 Dana, 107; 17 Mass. 623, 628; 16
Mass. 24; 8 Mass. 480. A covenant not to sue, entered into by
only one of several partners, cannot be set up as a release in an
action by all the partners. 3 P. & D. 149.
6. - §2. Covenant not to sue for - a limited time. Such a
covenant does not operate as a release, nor can it be pleaded as
such, but is a covenant only for a breach of which the obliger
may bring his action. Carth. 63; 1 Show. 46; Comb 123, 4; 2
Salk. 573; 6 Wend. 471.
COVENANT FOR QUIET ENJOYMENT. A covenant usually contained in a
lease, by which the lessor covenants or agrees that the tenant
shall quietly enjoy the premises leased. 11 East, 641.
2. Such a covenant is express or implied; express, when it is
so mentioned in the deed it is implied, either from the words
used, or from the conduct of the lessor. The words "grant" or
"demise" are held to amount to an implied covenant for quiet
enjoyment, unless afterwards restrained by a qualified express
covenant. 1 Chit. Pr. 344.
COVENANT TO STAND SEISED TO USES. A species of conveyance which
derives its effect from the statute of uses, and operates without
transmutation of possession.
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2. By this conveyance, a person seised of lands, covenant's
that he will stand seised of them to the use of another. On
executing the covenant, the other party becomes seised of the use
of the land, according to the terms of the use; and the statute
immediately annexes the possession to the use. This conveyance
has the same force and effect as a common deed of bargain and
sale; the great distinction between them is, that the former can
only be made use of among near domestic relations, for it must
be founded on the consideration of blood or marriage. 2 Bl. Com.
338; 2 Bouv. Inst. n. 2080; 4 Kent Com 480; Lilly's Reg.h. t.;
1 Vern. by Raithby, 40, n.; Cruise, Dig. tit. 32, c. 10; 11
John. R. 337; 1 John. Cas. 91; 7 Pick. R. 111; 1 Hayw.,R. 251,
259, 271, note; 1 Conn. R. 354; 20 John. R. 85; 4 Mass. R.
135; 4 Hayw. R. 229; 1 Cowen, R. 622; 3 N. H. Rep. 234; 16
John. R. 515; 9 Wend. R. 641; 7 Mass. R. 384.
COVENANT FOR TITLE. An assurance to the purchaser that the
grantor has the very estate in quantity and quality which he
purports to convey. 11 East, 642. See 4 Dall. Rep. 439.
COVENANTEE. One in whose favor a covenant is made.
COVENANTOR. One who becomes bound to perform a covenant.
2. To become a covenantor a person must be sui juris, and
intend, at the time of becoming bound, to covenant to perform
some act mentioned in the covenant. He can be discharged from his
covenant by performance, or, by the act of the covenantee, as the
non-performance of a condition precedent, a release, or a
rescission of the contract.
COVENANTS PERFORMED, pleading. In Pennsylvania, the defendant
may plead covenants performed to an action of covenant, and upon
this plea, upon informal notice to the plaintiff, he may give
anything in evidence which he might have pleaded. 4 Dall. 439; 2
Yeates, 107; 15 S. & R. 105. And this evidence, it seems, may be
given in the circuit court without notice unless called for. 2
Wash. C. C. R. 456.
COVENTRY ACT, criminal law. The common name for the statute 22
and 23 Car. II. c. 1; it having been enacted in consequence of
an assault on Sir John Coventry in the street, and slitting his
nose, in revenge, as was supposed, for some obnoxious words
uttered by him in parliament.
2. By this statute it is enacted, that if any person shall, of
malice aforethought, and by laying in wait, unlawfully cut or
disable the tongue, put out an eye, slit the nose, cut off the
nose or lip, or cut off or disable any limb, or member of any
other person, with intent to maim or disfigure him, such person,
his counsellors, aiders and abettors, shall be guilty of felony,
without benefit of clergy. 4 Bl. Com. 207. This statute is copied
by the act of the legislature of Pennsylvania, of April 22, 1794,
s. 6, 3 Smith's Laws of Pa. 188; and the offence is punished by
fine and imprisonment. For the act of Connecticut, see 2 Swift's
Dig. 293.
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COVERT, BARON. A wife; so called, from her being under the
cover or protection of her hushand, baron or lord.
COVERTURE. The state or condition of a married woman.
2. During coverture, the being of the wife is civilly merged,
for many purposes, into that of her hushand; she can, therefore,
in general, make no contracts without his consent, express or
implied. Com. Dig. Baron and Feme, W; Pleader, 2 A 1; 1 Ch. Pl.
19, 45; Litt. s. 28; Chit. Contr. 39; 1 Bouv. Inst. n. 276.
3. To this rule there are some exceptions: she may contract,
when it is for her benefit, as to save her from starvation. Chit.
Contr. 40.
4. In some cases, when coercion has been used by the hushand to
induce her to commit crime, she is exempted from punishment. 1
Ha1e, P. C. 516; 1 Russ. Cr. 16.
COVIN, fraud. A secret contrivance betwen two or more persons
to defraud and prejudice another of his rights. Co. Litt 357, b;
Com. Dig. Covin, A; 1 Vin. Abr. 473. Vide Collusion; Fraud.
COW. In a penal statute which mentions both cows and beefer's,
it was held that by the term cow, must be understood one that had
a calf. 2 East, P. C. 616; 1 Leach, 105.
COWARDICE. Pusillanimity; fear.
2. By the act for the better government of the navy of the
United States, passed April 21, 1800, 1 Story, L. U. S. 761; it
is enacted, art. 5, "every officer or private who shall not
properly observe the orders of his commanding officer, or shall
not use his utmost exertions to carry them into execution, when
ordered to prepare for, join in, or when actually engaged in
battle; or shall, at such time, basely desert his duty or
station, either then, or while in sight of an enemy, or shall
induce others to do so, every person so ofending, shall, on
conviction thereof by a general court martial, suffer death, or
such other punishment as the said court shall adjudge.
3. - Art. 6. "Every officer or private who shall, through
cowardice, negligence, or disaffection, in the time of action,
withdraw from, or keep out of battle, or shall not do his utmost
to take or destroy every vessel which it is his duty to
encounter, or shall not do his utmost ondeavor to afford relief
to ships belonging to the United States, every such offender
shall, on conviction thereof by a general court martial, suffer
death, or such other punishment as the said court shall adjudge."
4. By the act for establishing rules and articles for the
government of the armies of the United States, passed April 10,
1806, it is enacted, art. 52, " any officer or soldier, who shall
mishehave himself before the enemy, run away, or shamefully
abandon any fort, post, or guard, which he or they may be
commanded to defend, or speak, words inducing others to do the
like, or shall cast away his arms and ammunition, or who shall
quit his post or colors to plunder and pillage, every such
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offender, being duly convicted thereof, shall suffer death, or
such other punishment as shall be ordered by the sentence of a
general court martial."
CRANAGE. A toll paid for drawing merchandise out of vessels to
the wharf, so called, because the instrument used for the purpose
is called a crane. 8 Co. 46.
TO CRAVE. To ask; to demand.
2. This word is frequently used in pleading; as,-to crave oyer
of a bond on which the suit is brought; and in the settlement of
accounts, the accountant general craves a credit or an allowance.
1 Chit. Pr. 520. See Oyer.
CRAVEN. A word of obloquy, which in trials by battel, was
pronounced by the vanquished; upon which judgment was rendered
against him.
CREANCE. This is a French word, which, in its extensive sense,
signifies claim; in a narrower sense it means a debt. 1 Bouv.
Inst. n. 1040, note.
CREDENTIALS, international law. The instruments which authorize
and establish a public minister in his character with the state
or prince to whom they are addressed. If the state or prince
receive the minister, he can be received only in the quality
attributed to him in his credentials. They are, as it were, his
letter of attorney, his mandate patent, mandatum manifestum.
Vattel, liv. 4, c. 6, §76.
CREDIBILITY. Worthiness of belief. To entitle a witness to
credibility, he must be competent. Vide Competency.
2. Human testimony can seldom acquire the certainty of
demonstration. Witnesses not unfrequently are mistaken or wish to
deceive; the most that can be expected is that moral certainty
which arises from analogy. The credibility which is attached to
such testimony, arises. from the double presumption that the
witnesses have good sense and intelligence, and that they are not
mistaken nor deceived; they are further presumed to have
probity, and that they do not wish to deceive.
3. To gain credibility, we must be assured, first, that the
witness has not been mistaken nor deceived. To be assured as far
as possible on this subject, it is proper to consider the nature
and quality of the facts proved; the quality and person of the
witness; the testimony in itself; and to compare it with the
depositions of other witnesses on the subject, and with known
facts. Secondly, we must be satisfied that he does not wish to
deceive: there are strong assurances of this, when the witness is
under oath, is a man of integrity, and disinterested. Vide Arch.
Civ. Pl. 444; 5 Com. Dig. 449; 8 Watts, R. 227; Competency.
CREDIBLE WITNESS. A credible witness is one who is competent to
give evidence, and is worthy of belief. 5 Mass. 219 17 Pick. 134;
2 Curt. Ecc. R. 336. In deciding upon the credibility of a
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witness, it is always pertinent to consider whether he is capable
of knowing the thing thoroughly about which he testifies. 2.
Whether he was actually present at the transaction. 3. Whether he
paid, sufficient attention to qualify himself to be a reporter of
it; and 4. Whether he honestly relates the affair fully as he
knows it, without any purpose or desire to deceive, or suppress
or add to the truth.
2. In some of the states, as Delaware, Illinois, Maine,
Maryland, Rhode Island, Vermont, and Virginia, wills must be
attested by credible witnesses. See Attesting Witness; Competent
Witness; Disinterested Witness; Respectable Witness; and
Witness.
CREDIT, common law, contracts. The ability to borrow, on the
opinion conceived by the lender that he will be repaid. This
definition includes the effect and the immediate cause of credit.
The debt due in consequence of such a contract is also called a
credit; as, administrator of an the goods, chattels, effects and
credits, &c.
2. The time extended for the payment of goods sold, is also
called a credit; as, the goods were sold at six months credit.
3. In commercial law, credit is understood as opposed to debit;
credit is what is due to a merchant, debit, what is due by him
4. According to M. Duvergier, credit also signifies that
influence acquired by intrigue connected with certain social
positions. 20 Toull. n. 19. This last species of credit is not,
of such value as to be the object of commerce. Vide generally, 5
Taunt. R. 338.
CREDITOR, persons, contracts. A creditor is he who has a right
to require the fulfilment of an obligation. or contract.
2. Creditors may; be divided into personal and real.
3. The former are so called, because their claims are mainly
against the person, who can reach the property of their debtors
only by; virtue of the general rule by which he who has become
personally obligated, is bound to fulfil his engagements, with
all his property acquired and to be acquired, Which is a common
guaranty for all his creditors.
4. The latter are called real, because they have mortgages or
other securities binding on the real estates of their debtors.
5. It is proper to state that personal creditors may be divided
into two classes first, those who have a right on all the
property of their debtors, without considering the origin, or the
nature of their claims; secondly, those who, in consequence of
some provision of law, are entitled to some special prerogative,
either in the manner of recovery, or in the rank they are to hold
among creditors; these are entitled to preference. As an
example, may be mentioned the case of the United State; when
they are creditors, they have always a preforenee in case of
insolvent estates.
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6. A creditor sometimes becomes so, unknown to his debtor, as
is the case when the former receives an assignment of commercial;
paper, the title to recover which may be conveyed either by
endorsement, or, in some cases, by mere delivery. But in general
it is essential there should be a privity of contract between the
parties. Vide, generally, 7 Vin. Ab. 42; 3 Com. Dig. 343; 8
Com. Dig. 388; 1 Supp. to Ves. Jr. 302 2 Sup. to Ves. Jr. 305
Code, 7, 72, 6; Id. 8, 18; Dig 42, 6, 17; Nov. 97 ch. t3 Bouv.
Inst. Index, h. t.
CREEK, mar. law. Creeks are of two kinds, viz. creeks of the
sea and creeks of ports. The former sorts are such little inlets
of the sea whether within the precinct or extent of a, port or
without, which are narrow rittl6 passages@ and-have shore on
either side of them. The latter, Viz. breeks of ports, are by a
kind of civil denomination such. They are such, that though
possibly for their extent and. situation they might be ports, yet
they are either members of or dependent upon other ports. In
England it began thus: the king, could not conveniently have a
customer and comptroller in every port or haven. But these custom
officers were fixed at some eminent port; and the smaller
adjacent ports became by that means creeks, or appendants. of
that where these custom officers were placed. 1 Chit. Com. Law,
726; Hale's Tract. de Portibus Maris, part 2, c. 1, vol. 1, p.
46; Com. Dig. Navigation, C; Callis, 34.
2. In a more popular sense, creek signifies a small stream,
less than a river. 12 Pick. R. 184,
CRETION, civil law.. The acceptance of a succession. Cretion
was an act made before a magistrate, by which an instituted heir,
who was required to accept of the succession within a certain
time, declares within that time that he accepted the suecession.
Clef cles Lois Rom. h. t.
2. Cretion is also used to signify the term during which the
heir is allowed to make his election to take or not to take the
inheritance. It is so called, because the heir is allowed to see,
cernere, examine, and decide. Gaii, lust. lib. 2, §164.
CREW. Those persons who are employed in the navigation of a
vessel.
2. A vessel to be seaworthy must have a sufficient crew. 1
Caines, R. 32; 1 John. R. 184.
3. In general, the master or captain (q.v.) has the selection
of the crew. Vide Muster roll; Seaman; Ship; Shipping
articles.
CRIB-BITING. A defect in horses, which consists in biting the
crib while in the stable. This is not, considered as a breach of
general warranty of soundness. Holt's Cas. 630.
CRIER. An inferior officer of a court, whose duty it is to open
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and adjourn the court, when ordered by the judges; to make
proclamations and obey the directions of the court in anything
which concerns the administration of juustice.
CRIME. A crime is an offence against a public law. This word,
in its most general signification, comprehends all offences but,
in its limited sense, it is confined to felony. 1 Chitty, Gen.
Pr. 14.
2. The term misdemeanor includes every offence inferior to
felony, but punishable by indictment or by-particular prescribed
proceedings.
3. The term offence, also, may be considered as, having the
same meaning, but is usually, by itself, understood to be a crime
not indictable but punishable, summarily, or by the forfeiture
of, a penalty. Burn's Just. Misdemeanor.
4. Crimes are defined and punished by statutes and by the
common law. Most common law offences are as well known, and as
precisely ascertained, as those which are defined by statutes;
yet, from the difficulty of exactly defining and describing every
act which ought to be punished, the vital and preserving
principle has been adopted, that all immoral acts which tend to
the prejudice of the community are punishable by courts of
justice. 2 Swift's Dig.
5. Crimes are mala in se, or bad in themselves; and these
include. all offences against the moral law; or they are mala
prohibita, bad because prohibited, as being against sound policy;
which, unless prohibited, would be innocent or indifferent.
Crimes may be classed into such as affect:
6.- 1. Religion and public worship: viz. blasphemy, disturbing
public worship.
7. - 2. The sovereign power: treason, misprision of treason.
8. - 3. The current coin: as counterfeiting or impairing it.
9. - 4. Public justice: 1. Bribery of judges or jurors, or
receiving the bribe. 2. Perjury. 3. Prison breaking. 4. Rescue.
5. Barratry. 6. Maintenance. 7. Champerty. 8. Compounding
felonies. 9. Misprision of felonies. 10. 6ppression. 11.
Extortion. 12. Suppressing evidence. 13. Negligence or misconduct
in inferior officers. 14. Obstructing legal process. 15.
Embracery.
10. - 5. Public peace. 1. Challenges to fight a duel. 2. Riots,
routs and unlawful assemblies. 3. Affrays. 4. Libels.
11. - 6. Public trade. 1. Cheats. 2. Forestalling. S.
Regrating. 4. Engross-
ing. 5. Monopolies.
12. - 7. Chastity. 1. Sodomy. 2. Adultery. 3. Incest. 4.
Bigamy. 5. Fornication.
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13. - 8. Decency and morality. 1. Public indecency. 2.
Drunkenness. 3. Violatiug the grave.
14. - 9. Public police and economy. 1. Common nuisances. 2.
Keeping disorderly houses and bawdy houses. 3. Idleness,
vagrancy, and beggary.
15. - 10. Public. policy. 1. Gambling. 2. Illegal lotteries.
16. - 11. Individuals. 1. Homicide, which is justifiable,
excusable or felonious.
2. Mayhem. 3. Rape. 4. Poisoning, with intent to murder. 5.
Administering drugs to a woman quick with child to cause,
miscarriage. 6. Concealing death of bastard child.
7. Assault and battery, which is either simple or with intent
to commit some other crime. 8. kidnapping. 9. False imprisonment.
10. Abduction.
17. - 12. Private property. 1. Burglary. 2. Arson. 3. Robbery.
4., Forgery.
Counterfeiting. 6. Larceny. 7. Receiving stolen goods, knowing
them to have been stolen, or theft-bote. 8. Malicious mischief.
18. - 13. The public, individuals, or their property, according
to the intent of the criminal. 1. Conspiracy.
CRIME AGAINST NATURE. Sodomy. It is a crime not fit to be
named; peccatum horribile, inter christianos non nominandum. 4
Bl. Com. 214. See Sodomy.
CRIMEN FALSI, civil law, crime. It is a fraudulent alteration,
or forgery, to conceal or alter the truth, to the prejudice of
another. This crime may, be committed in three ways, namely: 1.
By forgery. 2. By false declarations or false oath, perjury. 3.
By acts; as, by dealing with false weights and measures, by
altering the current coin, by making false keys, and the like.
Vide Dig. 48, 10, 22; Dig. 34, 8 2; Code, lib. 9, t. 22, 1. 2,
5, 9. 11, 16,
17, 23, and 24; Merl. Rep. h. t.; 1 Bro. Civ. Law, 426; 1
Phil. Ev. 26; 2 Stark. Ev. 715.
2. What is understood by this, term in the common law, is not
very clearly defined. Peake's Ev. 133; 1 Phil. Ev. 24; 2 Stark.
Ev. 715. It extends to forgery, perjury, subornation of perjury,
suppression of testimony by bribery, and conspiracy to convict of
perjury. See 12 Mod. 209; 2 S. & R. 552; 1 Greenl. Ev. §373;
and article Faux.
CRIMINAL. Relating to, or having the character of crime; as,
criminal law, criminal conversation, &c. It also signifies a
person convicted of a crime.
CRIMINAL CONVERSATION, crim. law. This phrase is usually
employed to denote the crime of adultery. It is abbreviated crim.
con. Bac. Ab. Marriage, E 2; 4Blackf. R. 157.
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2. The remedy for criminal conversation is, by an action on the
case for damages. That the plaintiff connived, or assented to,
his wife's infidelity, or that he prostituted her for gain, is a
complete answer to the action. See Connivance. But the facts that
the wife's character for chastity was bad before the plaintiff
married her; that he lived with her after he knew of the
criminal intimacy with the defendant; that he had connived at
her intimacy with other men;, or that the plaintiff had been
false to his wife, only go in mitigation of damages. 4 N. Hamp.
R. 501.
3. The wife cannot maintain an action for criminal conversation
with her hushand; and for this, among other reasons, because her
hushand, who is particeps criminis, must be joined with her as
plaintiff.
CRIMINAL LETTERS. An instrument in Scotland, which contains the
charges against a person accused of a crime. Criminal letters
differ from an indictment, in that the former are not, like an
indictment, the mere statement of the prosecutor, but sanctioned
by a judge. Burt. Man. Pub. L. 301, 302.
CRIMINALITER. Criminally; opposed to civiliter, civilly.
2. When a person commits a wrong to the injury of another, he
is answerable for it civiliter, whatever may have been his
intent; but, unless his intent has been unlawful the is not
answerable criminaliter. 1 East, 104.
TO CRIMINATE. To accuse of a crime; to admit having committed
a crime or misdemeanor.
2. It is a rule, that a witness cannot be compelled to answer
any question which has a tendency to expose him to a penalty, or
to any kind of punishment, or to a criminal charge. 3 Bouv. Inst.
n. 3209-12; 4 St. Tr. 6; 10 How. St. Tr.@ 1096; 6 St. Tr. 649;
16 How. St. Tr. 1149; 2 DougI. R. 593; 2 Ld. Raym. 1088; 24
How. St. Tr. 720; 16 Ves. jr. 242; 2 Swanst. Ch. R. 216; 1
Cranch. R. 144; 2 Yerg. R. 110 5 Day, Rep. 260; I Carr., &
Payne, 11 2 Nott & M'C. 13; 6 Cowen, Rep. 254; 2 Peak. N. P. C.
106; 1 John. R. 498; 12 S. & R. 284; 8 Wend. 598.
3. An accomplice, admitted to give evidence against his
associates in guilt, is bound to make a full and fair confession
of the whole truth respecting the subject-matter of the
prosecution; but he is not bound to answer with respect to his
share in other offences, in which he was not concerned with the
prisoner. 9 Cowen, R. 721, note (a); 2 Carr. & Payne, 411. Vide
Disgrace,; Witness;
CRIMINATOIN. The act by which a party accused, is proved to be
guilty.
2. It is a rule, founded in common sense, that no one is bound
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to criminate himself. A witness may refuse to answer a question,
when the answer would criminate him, and subject him to
punishment. And a party in equity is not bound to answer a bill,
when the answer would form a step in the prosecution. Coop. Eq.
Pl. 204; Mitf. Eq. Pl. by Jeremy, 194; Story, Eq,. Pl. §591;
14 Ves. 59.
CRITICISM. The art of judging skilfully of the merits or
beauties, defects or faults of a literary or scientific
performance, or of a production of art; when the criticism is
reduced to writing, the writing itself is called a criticism.
2. Liberty of criticism must be allowed, or there would be
neither purity of taste nor of morals. Fair discussion, is
essentially necessary to, the truth of history and advancement of
scienc. That publication therefore, is not a libel, which has for
its object, not to injure the reputation of an individual, but to
correct misrepresentations of facts, to refute sophistical
reasoning, to expose a vicious taste for literature, or to
censure what is hostile to morality. Campb. R. 351-2. As every
man who publishes a book commits himself to the judgment of the
public, any one may comment on his performance. If the
commentator does not step aside from the work, or introduce
fiction for the purpose of condemnation, he exercises a fair and
legitimate right. And the critic does a good service to the
public who writes down any vapid or useless publication such as
ought never to have appeared; and, although the author may
suffer a loss from it, the law does nto conisder such loss an
injury; because it is a loss which the party ought to sustain.
It is the loss of fame and profit, to which he was never
entitled. 1 Campb. R. 358, n. See 1 Esp. N. P. Cas. 28; 2 Stark.
Cas. 73; 4 Bing. N. S. 92; S. C. 3 Scott, 340;. 1 M. & M. 44;
1 M. & M. 187; Cooke on Def. 52.
CROFT, obsolete. A little close adjioning to a dwelling-house,
and enclosed for pasture or arable, or any particular use.
Jacob's Law Dict.
CROP. This word is nearly synonymous with emblements. (q. v.),
2. As between the landlord and tenant, the former has a lien;
in some of -the states, upon the crop for the rent, for a limited
time, and, if sold on an execution against the tenant, the
purchaser succeds to the liability of the tenant, for rent and
good hushandry, and the crop is still liable to be distrained.
Tenn. St. 1825, c. 21; Misso. St. 377; Del. St. 1829, 366; 1
N. J. R. C. 187; Atk. Dig. 357; 1 N. Y. R. S. 746; 1 Ky. R. L.
639; 5 Watts, R. 134; 41 Griff. Reg. 671, 404; 1 Hill. Ab.
148, 9; 5 Penn. St. R. 211.
3. A crop is not considered is a part of the real estate, so as
to make a sale of it void, when the contract has not been reduced
to writing, within the statute of frauds. 11 East, 362; 2 M. &
S. 205; 5 B. & C. 829; 10 Ad. & El. 753; 9 B. & C. 561; but
see 9 M. & W. 501.
4. If a hushand sow land and die, and the land which was sown
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is assigned to the wife for her dower, she shall have the corn,
and not the executors of the hushand. Inst. 81.
CROPPER, contracts. One who, having no interest in the land,
works it in consideration of receiving a portion of the crop for
his labor. 2 Rawle, R. 12.
CROSS. contracts. A mark made by persons who are unable to
write, instead of their names.
2. When properly attested, and proved to have been made by the
party whose name is written with the mark, it is generally
admitted as evidence of the party's signature.
CROSS ACTION. An action by a defendant in an action, against
the plaiutiff in the same action, upon the same contract, or for
the same tort; as, if Peter bring an action of trespass against
Paul, and Paul bring another action of trespass against Peter,
the subject of the dispute being an assault and battery, it is
evident that Paul could not set off the assault committed upon
him by Peter, in the action which Peter, had brought against him;
therefore the cross action became necessary.
CROSS BILLS, practice. When an individual prosecutes a bill of
indictment against another, and hte defendant procures another
bill to be found against the first prosecutor, the bills so found
by the grand jury are called corss bills. The most usually occur
in cases of assault and battery.
2. In chancery practice it is not unusual for parties to file
cross bills. Vide Bill, cross.
CROSS-EXAMINATION, practice. The examination of a witness, by
the party who did not call him, upon matters to which he has been
examined in chief.
2. Every party has a right to cross-examine a witness produced
by his antagonist, in order to test whether the witness has the
knowledge of the things he testifies and if, upon examination, it
is found that the witness had the means and ability to ascertain
the facts about which he testifies, then his memory, his motives,
everything may be scrutinized by the cross- examination.
3. In cross-examinations a great latitude is allowed in the
mode of putting
questions, and the counsel may put leading questions. (q. v.)
Vide further on this subject, and for some rules which limit the
abuse of this right, 1 Stark. Ev,. 96; 1 Phil. Ev. 210; 6 Watts
& Serg. 75.
4. The object of a cross-examination is to sift the evidence,
and try the credibility of a witness who has been called and
given evidence in chief. It is one of the principal tests which
the law has devised for the ascertainment of truth, and it is
certainly one of the most efficacious. By this means the
situation of the witness, with respect to the parties and the
subject of litigation, his interest, his motives, his
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inclinations and his prejudices, his means of obtaining a correct
and certain knowledge of the facts to which he testifies the
manner in which he has used those means, his powers of discerning
the facts in the first instance, and of his capacity in retaining
and describing them, are fully investigated and ascertained. The
witness, however artful he may be, will seldom be able to elude
the keen perception of an intelligent court or jury, unless
indeed his story be founded on truth. When false, he will be
liable to detection at every step. 1 Stark. Ev. 96; 1 Phil. Ev.
227; Fortese. Rep. Pref. 2 to 4; Vaugh. R. 143.
5. In order to entitle a party to a cross-examination, the
witness must have been sworn and examined; for, even if the
witness be asked a question in chief, yet if he mahe no answer,
the opponent has no right to cross-examine. 1 Cr. M. & Ros. 95;
1 16 S. & R. 77; Rosc. Cr. Ev. 128; 3 Car. & P. 16; S. C. 14
E. C. L. Rep. 189; 3 Bouv. Inst. n. 3217. Formerly, however, the
rule seems to have been different. 1 Phil. Ev. 211.
6. A cross-examination of a witness is not always necessary or
advisable. A witness tells the truth wholly or partially, or he
tells a falsebood. If he tells the whole truth, a
cross-examination may have the effect of rendering his testimony
more circumstantial, and impressing the jury with a stronger
opinion of its truth. If he tells only a part of the truth, and
the part omitted is favorable to the client of the counsel
cross-exaimining, he should direct the attention of the witness
to the matters omitted. If the testimony of the witness be false,
the whole force of the cross-examination should be directed to
his credibility. This is done by questioning him as to his means
of knowledge, his disinterestedness, and other matters calculated
to show a want of integrity or veracity, if there is reason to
believe the witness prejudiced, partial, or wilfully dishonest.
Arch. Crim. Pl. 111. See Credible Witness.
CROWN. A covering for the head, commonly used by kings;
figuratively, it signifies royal authority. By pleas of the
crown, are understood criminal actions.
CRUELTY. This word has different meanings, as it is applicd to
different things. Cruelty may be, 1. From hushand towards the
wife, or vice versa. 2. From superior towards inferior, 3. From
master towards slave. 4. To animals. These will be separately
considered.
2. - 1. Between hushand and wife, those acts which affect the
life, the health, or even the comfort of the party aggrieved, and
give a reasonable apprehension of bodily hurt, are called
cruelty. What merely wounds the feelings is seldom admitted to be
cruelty, unless the act be accompanied with bodily injury, either
actual or menaced. Mere austerity of temper, petulance of
manners, rudeness of language, a want of civil attention and
accommodation, even occasional sallies of passion, will not
amount to legal cruelty; 17 Conn. 189; a fortiori, the denial
of little indulgences and particular accommodations, which the
delicacy of the world is apt to number among its necessaries, is
not cruelty. The negative descriptions of cruelty are perhaps the
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best, under the infinite variety of cases that may occur, by
showing what is not cruelty. 1 Hagg. R. 35; S. C. 4 Eccles. R.
311, 312; 2 Hagg. Suppl. 1; S. C. 4 Eccles. R. 238; 1 McCord's
Ch. R. 205; 2 J. J. Marsh. R. 324; 2 Chit. Pr. 461, 489;
Poynt. on Mar. & Div. c. 15, p. 208; Shelf. on Mar. & Div. 425;
1 Hagg. Cons. R. 37, 458; 2 Ragg. Cons. Rep. 154; 1 Phillim.
111, 132; 8 N H. Rep. 307; 3 Mass. 321; 4 Mass. 487. It is to
be remarked that exhibitions of passion and gusts of anger, which
would be sufficient to create irreconcilable hatred between
persons educated and trained to respect each other's feelings,
would, with persons of coarse manners and habits, have but a
momentary effect. An act which towards the latter would cause but
a momentary difference, would with the former, be excessive
cruelty. 1 Briand Med. Leg. 1 ere part. c. 2, art. 3.
3. - 2. Cruelty towards weak and helpless persons takes place
where a party bound to provide for and protect them, either
abuses them by whipping them unnecessarily, or by neglecting to
provide for them those necessaries which their helpless condition
requires. To expose a person of tender years, under a party's
care, to the inclemency of the weather; 2 Campb. 650; or to
keep such a child, unable to provide for himself, without
adequate food; 1 Leach, 137; Russ. & Ry. 20 or an overseer
neglecting to provide food and medical care to a pauper having
urgent and immediate occasion for them; Russ. & Ry. 46, 47, 48;
are examples of this species of cruelty.
4. - 3. By the civil code of Louisiana, art. 192, it is
enacted, that when the master shall be convicted of cruel
treatment of his slave, the judge may pronounce, besides the
penalty established for such cases, that the slave shall be sold
at public auction, in order to place him out of the reach of the
power which his master has abused.
5. - 4. Cruelty to animals is an indictable offence. A
defendant was convicted of a misdemeanor for tying the tongue of
a calf so near the root as to prevent its sucking, in order to
sell the cow at a greater price, by giving to her udder the
appearance of being full of milk, while affording the calf all he
needed. 6 Rogers, City Hall Rec. 62. A man may be indicted for
cruelly beating his horse. 3 Rogers, City Rec. 191.
CRUISE, mar. law. A voyage or expedition in quest of vessels or
fleets of the enemy which may be expected to sail through any
particular track of the sea, at a certain season of the year the
region in which these cruises are performed is usually termed the
rendezvous or cruising latitude.
2. When the ships employed for this purpose, which are
accordingly called cruisers, have arrived at the destined
station, they traverse the sea, backwards and forwards, under an
easy sail, and within a limited space, conjectured to be in the
track of their expected adversaries. Wesk. Ins. h. t.; Lex Merc.
Rediv. 271, 284; Dougl. 11. 509; Park. Ins. 58; Marsh. Ins.
196, 199, 520; 2 Gallis. 268.
CRY DE PAYS, OR CRI DE PAIS. Literally, cry of the country. In
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England, when a felony has been committed, hue and cry (q. v.)
may be raised by the country, in the absence of the constable. It
is then cry de pays. 2 Hale, P. C. 100.
CRYER, practice. An officer in a court whose duty it is to make
various proclamations ordered by the court.
CUEILLETTE. A term in French maritime law. Affreightment of a
vessel a cueillette, is a contract by which the captain obligates
himself to receive a partial cargo, only upon condition that he
shall succeed in completing his cargo by other partial lading;
that is, by gathering it (en recueillant) wherever he may be able
to find it. If he fails to collect a cargo, such partial
charterin is void. Code de Com. par M. Fournel, art. 286, n.
CUI ANTE DIVORTIUM. The name of an ancient writ, which was
issued in favor of a woman divorced from her hushand, to recover
the lands and tenements which she had in fee simple, or in tail,
or for life, from him to whom her hushand alienated them during
the marriage, when she could not gainsay it. F. N. B. 240. Vide
Sur cui ante divortium.
CUI IN VITA. The name of a writ of entry for a widow against a
person to whom the hushand had, in his lifetime, aliened the
lands of the wife. F. N. B. 193. This writ was founded sometimes
on the stat. 13 Ed. 1. c. 3, and sometimes on the common law. The
object of this statute, was to enable the wife to avoid a
judgment to recover her land which had been rendered on the
default or confession of her hushand. It is now of no use in
England, because the stat. 32 H. VIII. c. 28, §6, provides that
no act of the hushand, whether fine, feoffment, or other act of
the hushand during coverture, shall prejudice the wife. Both
these statutes are reported as in force in Pennsylvania. 3 Bin.
Appx. See Booth on Real Actions, 186; 6 Rep. 8, 9, Forrers'
Case. Still, that part of the stat. 13 Ed. I. c. 8, which relates
to the pleadings and evidence iu such cases is important if it
can be enforced in the modern action of ejectment, viz: that
which requires the tenant of the lands to show his right
according to the form of the writ he sued out against the
hushand. See Report of the Commissioners to revise the Civil Code
of Pennsylvania, Jan. 16, 1835, pp. 90, 91.
CUL DE SAC. This is a French phrase, which signifies,
literally, the bottom of a bag, and, figuratively, a street not
open at both ends. It seems not to be settled whether a cul de
sac is to be considered a highway. See 1 Campb. R. 260; 11 East,
R. 376, note; 5 Taunt. R. 137; 5 B. & Ald. 456; Hawk. P. C. b.
1, c. 76, s. 1 Dig. lib. 50, tit. 16, l. 43; Dig. lib. 43, t.
12, l. §13; Dig. lib. 47, tit. 10, 1. 15, §7.
CULPA. A fault committed without fraud, and this distinguishes
it from dolus, which is a trick to deceive. See Dolus.
CULPRIT, crim. law. When a prisoner is arraigned, and he pleads
not guilty, in the English practice, the clerk, who arraigns him
on behalf of the crown, replies that the prisoner is guilty, and
that he is ready to prove the accusation; this is done by two
monosyllables, cul. prit. Vide Abbreviations; 4 Bl. Com. 339; 1
Chit. Cr. Law, 416.
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CUM PERTINENTIS. With the appurtenances. See Appurtenances.
CUM ONERE. This term is usually employed to show that something
is taken, subject to a charge or burden.
CUM TESTAMENTO ANNEXO. With the testament or will annexed. It
often happens that the deceased, although he makes a will,
appoints no executor, or else the appointment fails; in either
of which events he is said to die quasi intestatus. 2 Inst. 397.
The appointment of an executor fails, 1st. When the person
appointed refuses to act. 2d. When the person appointed dies
before the testator, or before he has proved the will, or when,
from any other legal cause, he is incapable of acting. 3d. When
the executor dies intestate, (and in some places, as in
Pennsylvania, whether he die testate or intestate,) after having
proved the will, but before he has administered all the personal
estate of the deceased. In all these cases, as well as when no
executor has been appointed, administration, with the will
annexed, must be granted by the proper officer. In the case where
the goods are, not all administered before the death of the
executor, the administration is also called an administration de
bonis non.
2. The office of such an an administrator differs little from
that of an executor. Vide Com. Dig. Administration; Will. Ex. p.
1, b. 5, c. 3, s. 1; 2 Bl. Com. 504-5; 11 Vin. Ab. 78; Toll.
92 Gord. Law of Deced. 98.
CUMULATIVE. Forming a heap; additional; as, cumulative
evidence, or that which goes to prove the same point which has
been established by other evidence. Cumulative legacy, or
accumulative legacy, is a second bequest, given by the same
testator to the same legatee. 2 Rop. Log. 19,. See 1 Saund. 134,
n. 4; Remedy.
CUMULATIVE LEGACY. Vide Legacy accumulative; and 8 Vin. Ab.
308 1 Supp. to Ves. jr. 133, 282, 332.
CURATE, eccl. Iaw. One who represents the incumbent of a
church, person, or 20 vicar, and tades care of the church, and
performs divine service in his stead.
CURATOR, persons, contracts. One who has been legally appointed
to take care of the interests of one who, on account of his
youth, or defect of his understanding, or for some other cause,
is unable to attend to them himself.
2. There are curators ad bona, of property, who administer the
estate of a minor, take care of his person, and intervene in all
his contracts; curators ad litem, of suits, who assist the minor
in courts of justice, and act as curator ad bona in cases where
the interests of the curator are opposed to the interests of the
minor. Civ. Code of Louis. art. 357 to 366. There are also
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curators of insane persons Id. art. 31; and of vacant
successions and absent heirs. Id. art. 1105 to 1125.
3. The term curator is usually employed in the civil law, for
that of guardian.
CURATORSHIP, offices, contracts, in the civil law. The power
given by authority of law, to one or more persons, to administer
the property of an individual who is unable to take care of his
owu estate and affairs, either on account of his absence without
an authorized agent, or in consequence of his prodigality, or
want of mind. Poth. Tr. des Personnes, t. 6, s. 5. As to the laws
of Louisiana, which authorize a curatorship, vide Civ. Code, art.
31, 50, et seq. 357, et seq.; 382, 1105, et seq.
2. Curatorship differs from tutorship, (q. v.) in this, that
the latter is instituted for the protection of property in the
first place, and, secondly, of the person; while the former is
intended to protect, first, the person, and, secondly, the
property. 1 Lecons Elem. du Droit Civ. Rom. 241.
CURATRIX. A woman who has been appointed to the office of
curator.
CURE. A restoration to health.
2. A person who had quitted the habit of drunkenness for the
space of nine months, in consequece of medicines he had taken,
and who had lost his appetite for ardent spirits, was held to
have been cured. 7 Yerg. R. 146.
3. In a figurative sense, to cure is to remedy any defect; as,
an informal statement of the plaintiff's cause of action in his
declaration is cured by verdict, provided it be substantially
stated.
CURFEW. The name of a law, established during the reign of the
English king, William, the conquerer, by which the people were
commanded to dispense with fire and candle at eight o'clock at
night.
It was abolished in the reign of Henry I., but afterwards it
signified the time at which the curfew formerly took place. The
word curfew is derived, probably, from couvre few, or cover fire.
4 Bl. Com. 419, 420.
CURIA. A court of justice.
CURIA CLAUDENDA, WRIT DE, Eng. law. The name of a writ, used to
compel a party to enclose his land. F. N. B. 297.
CURIA ADVISARE VULT, practice. The court will consider the
matter. This entry is made on the record when the court wish to
take time to consider of a case before they give a final
judgment, which is made by an abbreviation, cur. ad vult, for the
purpose of marking the continuance. In the technical sense, it is
a continuance of the cause to another term.
CURIA REGIS. An English court, which assumed this name, during
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the reign of Henry II. It was Curia or Aula Regis, because it was
held in the g reat hall of the king's palace; and where the
king, for some time, administered justice in person. But
afterwards, the judicial power was more properly entrusted to the
king's judges. The judges who sat in this court were
distinguished by the name of justices, or justiciaries. Besides
these, the chief justiciary, the stewart of all England, the
chancellor, the chamberlain, and the treasurer, also took part in
the judicial proceedings of this court.
CURIALITY, Scotch law. The same as courtesy. (q. v.) 1 Bell's
Com. 61.
CURRENCY. The money which passes, at a fixed value, from hand
to hand; money which is authorized by law.
2. By art. 1, s. 8, the Constitution of the United States
authorizes congress "to coin money, and to regulate the value
thereof." Changes in the currency ought not to be made but for
the most urgent reason, as they unsettle commerce, both at home
and abroad. Suppose Peter contracts to pay Paul one thousand
dollars in six months - the dollar of a certain fineness of
silver, weighing one hundred and twelve and a half grains - and
afterwards, before the money becomes due, the value of the dollar
is changed, and it weighs now but fifty-six and a quarter grains;
will one thousand of the new dollars pay the old debt? Different
opinion may be entertained, but it seems that such payment would
be complete; because, 1. The creditor is bound to receive the
public currency; and, 2. He is bound to receive it at its legal
value. 6 Duverg. n. 174.
CURRENT, merc. law. A term used to express present time; the
current month; i.e. the present month. Price current, is the
ordinary price at the time spoken of. A printed paper, containing
such prices, is also called a price current.
2. Current, in another sense, signifies that which is readily
received; as, current money.
CURSITOR BARON, Eng. law. An officer of the court of the
exchequer, who is appointed by patent under the great seal, to be
one of the barons of the exchequer.
CURTESY, or COURTESY, Scotch law. A life-rent given by law to
the surviving hushand, of all his wife's heritage of which she
died infeft, if there was a child of the marriage born alive. The
child born of the marriage must be the mother's heir. If she had
a child by a former marriage, who is to succeed to her estate,
the hushand has no right to the curtesy while such child is
alive; so that the curtesy is due to the hushand rather as
father to the heir, than as hushand to an heiress, conformable to
the Roman law, which gives to the father the usufruct of what the
child succeeds to by the mother. Ersk. Pr. L. Scot. B. 2, t. 9,
s. 30. Vide Estate by the curtesy.
CURTILAGE, estates. The open space situated within a common
enclosure belonging to a dwelling-house. Vide 2 Roll, Ab. 1, l.
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30; Com. dig. Grant, E 7, E 9; Russ. & Ry. 360; Id. 334, 357;
Ry & Mood. 13; 2 Leach, 913; 2 Bos. & Pull. 508; 2 East, P. C.
494; Russ. & Ry. 170, 289, 322; 22 Eng. Com. Law R. 330; 1 Ch.
Pr. 175; Shep. Touchs. 94.
CUSTODY. The detainer of a person by virtue of a lawful
authority. To be in custody, is to be lawfully detained under
arrest. Vide 14 Vin. Ab. 359; 3 Chit. Pr. 355. In another sense,
custody signifies having the care and possession of a thing; as,
the chancellor is entitled to the custody as the keeper of the
seal.
CUSTOM. A usage which had acquired the force of law. It is, in
fact, a lex loci, which regulates all local or real property
within its limits. A repugnancy which destroys it, must be such
as to show it never did exist. 5 T. R. 414. In Pennsylvania no
customs have the force of law but those which prevail throughout
the state. 6 Binn. 419, 20.
2. A custom derives its force from the tacit consent of the
legislature and the people, and supposes an original, actual deed
or agreement. 2 Bl. Com. 30, 31; 1 Chit. Pr. 283. Therefore,
custom is the best interpreter of laws: optima est legum
interpres consuetudo. Dig. 1, 8, 37; 2 Inst. 18. It follows,
therefore, there; can be no custom in relation to a matter
regulated by law. 8 M. R. 309. Law cannot be established or
abrogated except by the sovereign will, but this will may be
express or implied and presumed and whether it manifests itself
by word or by a series of facts, is of little importance. When a
custom is public, peaceable, uniform, general, continued,
reasonable and certain, and has lasted "time whereof the memory
of man runneth not to the contrary," it acquires the force of
law. And when any doubts arise as to the meaning of a statute,
the custom which has prevailed on the subject ought to have
weight in its construction, for the manner in which a law has
always been executed is one of its modes of interpretation. 4
Penn. St. Rep. 13.
3. Customs are general or, particular customs. 1. By general
customs is meant the common law itself, by which proceedings and
determinations in courts are guided.
2. Particular customs, are those which affect the inhabitants
of some particular districts only. 1 Bl. Com. 68, 74. Vide 1
Bouv. Inst. n. 121 Bac. Ab. h. t.; 1 Bl. Com. 76; 2 Bl. Com.
31; 1 Lill. Reg. 516; 7 Vin. Ab. 164; Com. Dig. h. t.;
Nelson's Ab. h. t. the various Amer. Digs. h. t. Ayl. Pand. 15,
16; Ayl. Pareg. 194; Doct. Pl. 201; 3 W. C. C. R. 150; 1
Gilp. 486; Pet. C. C. R. 220; I Edw. Ch. R. 146; 1 Gall. R.
443; 3 Watts, R. 178; 1 Rep. Const. Ct. 303, 308; 1 Caines, R.
45; 15 Mass. R. 433; 1 Hill, R. 270; Wright, R. 573; 1 N. &
M. 176; 5 Binn. R. 287; 5 Ham. R. 436; 3 Conn. R. 9; 2 Pet.
R. 148; 6 Pet. R. 715; 6 Porter R. 123; 2 N. H. Rep. 93; 1
Hall, R. 612; 1 Harr. & Gill, 239; 1 N. S. 192; 4 L. R. 160;
7 L. R. 529; Id. 215.
CUSTOM OF MERCHANTS, lex mercatoria. A system of customs
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acknowledged and taken notice of by all nations, and are,
therefore, a part of the general law of the land. See Law
merchant, and 1 Chit. Bl. 76, note 9.
CUSTOM-HOUSE. A place appointed by law, in ports of entry,
where importers of goods, wares and merchandise are bound to
enter the same, in order to pay or secure the duties or customs
due to the government.
CUSTOMARY RIGHTS. Rights which are acquired by custom. They
differ from prescriptive rights in this, that the former are
local usages, belonging to all the inhabitants of a particular
place or district - the latter are rights of individuals,
independent of the place of their residence. Best on Pres. §79;
Cruise, Dig. t. 31, c. 1, §7; 2 Greenl. Evi §542.
CUSTOMS. This term is usually applied to those taxes which are
payable upon goods and merchandise imported or exported. Story,
Const. §949; Bac. Ab. Smuggling.
CUSTOS ROTULORUM, Eng. law. The principal justice of the peace
of a county, who is the keeper of the records of the county. 1
Bl. Com. 349.
TO CUT, crim. law. To wound with an instrument having a sharp
edge. 1 Russ. on Cr. 577. Vide To Stab; Wound.
CY PRES, construction. These are old French words, which
signify "as near as."
2. In cases where a perpetuity is attempted in a will, the
courts do not, if they can avoid it, construe the devise to be
utterly void, but expound the will in such a manner as to carry
the testator's intentions into effect, as far as the rules
respecting perpetuities will allow; this is called construction
cy pres. When the perpetuity is attempted in a deed, all the
Iimitations are totally void. Cruise, Dig. t. 38, c. 9, s. 34;
and vide 1 Vern. 250; 2 Ves. Jr. 380, 336, 357, 364; 3 Ves. Jr.
141, 220; 4 Ves. 13; Com. Dig. Condition, L. 1; 1 Rop. Leg.
514; Swinb. pt. 4, s. 7, a. 4; Dane's Ab. Index, h. t.; Toull.
Dr. Civ. Fr. liv. 3, t. 3, n. 586, 595, 611; Domat, Loix Civ.
liv. 6. t. 2, s. 1; 1 Supp. to Ves. Jr. 134, 259, 317; 2 Id.
316,473; Boyle on Charities, Index, h. t.; Shelford on
Mortmain, Index, h. t.; 3 Bro. C. C. 166; 2 Bro. C. C. 492; 4
Wheat. R. 1; S. C. 3 Peters, R. App. 481; 3 Peters, R. 99; 15
Ves., 232; 2 Sto. Eq. Jur. §1169.
CZAR. A title of honor which is assumed by the emperor of all
the Russias. See Autocracy.
CZARINA. The title of the empress of Russia.
CZAROWITZ.. The title of the eldest son of the czar and czarina
of Russia.
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