§ 38. Privilege.- A service of summons upon a judge of a state court upon a writ from a United States court was held to be good if made while the judge was not actually in court or on his way there or back. The question was, however, certified to the supreme court. Lyell v. Goodwin, 4 McL., 45.

§ 39. A judge of a state court is privileged from summons or arrest on a writ issuing from a United States court while in actual attendance in his court or going there or returning. Ibid.

§ 40. An order of a judge committing an accused person for trial is illegal and void unless the accused has had an opportunity to confront the witnesses or has heard their testimony read, or been informed of the substance of it. A verbal direction from a judge to bring an accused party before him, issued on the mere statement of one witness without oath or affirmance, is no authority for his arrest. Johnson v. Tompkins, Bald., 571, 572.

§ 41. The appointment of a judge by a military governor of a state, while the state is in occupation by the troops, is purely military, authorized only by the necessities of military occupation, and subject to revocation whenever, in the judgment of the military governor, revocation should become necessary or expedient. And a military governor who succeeds the one making the appointment may exercise the power of revocation. The office also becomes vacant when the civil constitution of the state is again in full operation independent of military control, and the vacancy may be enforced by removal of the former incumbent, and by a new appointment by the civil governor. Handlin v. Wickliffe, 12 Wall., 173.

§ 42. A territorial judge, holding office for four years, does not wield any part of the judicial power of the United States, conferred by the constitution on the government. American Ins. Co. v. Canter,* 1 Pet., 511.






SUMMARY - Judicial functions, §§ 43, 44.— Power over judgment rendered at a former term, § 45.- Power to adjourn a session, § 46.— Right to examine records, § 47.- Acts of clerk de facto, § 48.- Acts of clerk on non-juridical day, § 49.

§ 43. It is a proper exercise of a judicial function for the court, in accordance with an act of congress, to settle the terms on which a bridge over a river may be used by a railroad company. In re Canada Northern Railway, §§ 50-52. See XI, infra.

§ 44. It is no less the exercise of judicial functions to prescribe a rule of conduct, or protect the existence of a right during a future period, than it is to determine whether the right has been invaded in the past. Ibid. See $75.

§ 45. After final judgment a court has no power to set aside verdict and judgment at a subsequent term, for a supposed want of jurisdiction or for error in law, though it may correct errors in form. Bank of United States v. Moss, $$ 53-59. See § 80.

§ 46. The power of adjourning a session is common to all courts, and the statutory provision authorizing the courts of the District of Columbia so to do merely affirmed a pre-existing power. Mechanics' Bank v. Withers, § 60.

§ 47. A citizen of the United States has not a right to examine at any time he may please, during office hours, all the books and records of a court of record. In re McLean, §§ 61–63. See § 113.

§ 48. The acts of a clerk de facto are valid so far as regards third persons. Halsey, 64-67. See § 105.

Cocke v.

§ 49. There is nothing at common law nor in the statutes of Wisconsin to prohibit the doing of a ministerial act on a non-juridical day, and the act of the circuit clerk in docketing a judgment on Christmas day is not void. In re Worthington, $$ 68, 69. [NOTES.-See §§ 70-166.]

IN RE CANADA NORTHERN RAILWAY v. INTERNATIONAL BRIDGE COMPANY. (District Court, Northern District of New York: 7 Federal Reporter, 653-657. 1880.)

STATEMENT OF FACTS.- Plaintiff in this case applied to the court to settle the terms under which it should enjoy the easement of a bridge across the Niagara river, under the control of the defendant. By act of congress of June 30, 1870, the duty of settling those terms was imposed upon the district court.

Opinion by WALLACE, J.

After fully considering the preliminary questions presented on the argument, I am of opinion that it was competent for congress to impose such conditions as in its discretion might seem proper concerning the use and control of the International bridge, and that by the act in question ample jurisdiction was conferred upon this court to determine the present controversy. While it was competent for the legislature of New York and the Canadian parliament to charter corporations and grant franchises for the construction and maintenance of the bridge, so far as their respective sovereignties were concerned, the corporation could only obtain the full benefits of the grant by the consent of congress. The subject of the grant was the right to build and control a bridge which would be a highway of transportation not only between the United States and a foreign country, but also the eastern and western states. It was therefore of the first importance to ascertain whether congress would sanction the purposes of the grant, and the terms and conditions upon which such sanction could be obtained. It was for congress to determine when its power to regulate commerce should be brought into activity, and as to the regulations and sanctions which should be provided. Gilman v. Philadelphia, 3 Wall., 725 (Const., §§ 1164-70); The Clinton Bridge, 10 Wall., 454; Pennsylvania v. The Wheeling Bridge Co., 18 How., 421.

§ 50. The power conferred upon the district court by act of congress of June 30, 1870, to settle terms for the use of a bridge over Niagara river is a judicial function.

By the act in question congress gave its sanction in advance, but upon the conditions that all railway companies desiring to use the bridge should have equal rights and privileges in the passage and in the use of the bridge, and of the machinery, fixtures and approaches, "under and upon such terms and conditions" as this court should prescribe, "upon hearing the proofs and allegations of the parties in case they should not agree." The power of congress over the subject was plenary. It exercised the power, and the International Bridge Company availed itself of the privileges and assented to the conditions of the legislative sanction. Congress could not delegate its legislative power to any other authority, nor could it confer jurisdiction upon this court to exercise any but judicial functions; and if the act in question, in any of its provisions, contravenes these maxims of constitutional law as to those provisions, it is inoperative. But the act is not obnoxious to these objections. It devolves upon this court simply the judicial functions of determining the rights of parties when they may be brought into controversy. The rights are created and established by the act; and this is the office of the legislative department. The power to adjudicate upon these rights, to ascertain, when controversy arises, their extent and value, and apply the appropriate remedy for their protection, is conferred upon the court; and this is the peculiar province of the judicial department. § 51. What is a judicial function as distinguished from an exercise of legislative power.

It is argued that the act attempts to confer upon the court the power to fix the rate of tolls which the International Bridge Company may charge, and that this is a legislative and not a judicial function. If congress had fixed the rate of tolls, as it had the right to prescribe the conditions upon which the franchise might be enjoyed, no other authority could have intervened to change these conditions. But suppose the act had, in terms, provided that the bridge company might charge reasonable tolls, would not this have been a complete

exercise of the legislative power, and would it not have remained for the judi cial department to decide, when controversy should arise, what were or were not reasonable tolls? And if the act had provided for such a determination by a judicial tribunal, would this have been unconstitutional? It seems to me clearly not. It is no less the exercise of judicial functions to prescribe a rule of conduct or protect the existence of a right during a future period, than it is to determine whether the right has been invaded in the past. It is one of the common offices of a court of equity to do this.

It is said that that which distinguishes a judicial from a legislative act is that the one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be for the regulation of all future cases falling under its provisions. It seems to me that this statement of the distinction is incomplete. It is essential to judicial action that there be parties and a controversy. Judgment is only pronounced after a hearing. That would not be judicial action which should determine the existing law in relation to some existing thing, already done or happened, without the intervention of parties and the existence of a controversy; and when there are parties and a controversy it is not less a judicial act because the determination regulates rights and obligations in the future, and the manner in which they shall be observed. The act of congress in effect provides that all the companies using the bridge shall have equal privileges in its use, and for a reasonable compensation, to be ascertained by the court if the parties cannot agree. The phraseology employed is unfortunate, and fairly suggests the objections which have been urged; but when the act refers the question of the conditions upon which an easement shall be enjoyed to a judicial tribunal for decision, after hearing the proofs and allegations of the parties, the implication is cogent that this decision shall proceed upon settled principles of law and equity, and not upon arbitrary discretion.

§ 52. Courts will uphold an act of congress whenever they can consistently do so. An act of congress will not be declared unconstitutional unless every reasonable doubt to the contrary is resolved against its validity; and it is the duty of courts so to construe the act as to uphold it, if possibly consistent with the language used. Had it been the intent of the act to confer jurisdiction upon the court simply to enforce equality, and prevent unfair discrimination for or against any of the several corporations in the use of the bridge, it would have been unnecessary to authorize the court to prescribe the "terms and conditions" upon which the various companies might use the bridge. It would have sufficed to confer jurisdiction in general terms over any controversy that might arise, and it would then have been competent for the court to enforce equality upon any of the principles and by any of the remedies known to the court. Effect must be given to the language used. The conclusion reached is also in harmony with considerations of a more general character. It can hardly be supposed that congress intended to grant unlimited authority to a corporation to fix any compensation it might see fit for the use of the bridge, because it would then be in the power of the corporation to do indirectly what it has not intended should be done. The bridge company could charge such tolls that no railway company could use the bridge unless it should be a stockholder, and thereby receive in dividends what it might pay out for tolls. The bridge was to be an enterprise of great public importance, and it is reasonable to suppose that congress intended carefully to guard the public interests which were concerned.


(6 Howard, 31-40. 1847.)

ERROR to U. S. Circuit Court, Southern District of Mississippi.

STATEMENT OF FACTS.-In this case, at the November term of the circuit court for the southern district of Mississippi, A. D. 1841, a verdict was found for the plaintiffs against the defendants for $26,485.66. Final judgment was then rendered for that sum. At the ensuing May term, on motion of the defendants, the court set aside both the judgment and verdict, and dismissed the case for what is considered to be a want of jurisdiction. To this the plaintiff excepted, and a writ of error is now before us to reverse that decision. The first question is whether any want of jurisdiction appears on the record. No evidence is reported nor any defect apparent which seems to raise any doubt concerning the jurisdiction, unless it be in the pleadings. The declaration contained the usual money counts, beside special ones on two notes made to Briggs, Lacoste & Co., or their order, and by them indorsed to the plaintiffs. The defendants pleaded that they did not promise as alleged, and a verdict was found against them, without any statement being given of the evidence laid before the jury or the court, though copies of the two notes named in the declaration are printed in the case.

§ 53. A special count by indorser against maker should aver maker and payee to be residents of different states.

The various questions which this state of the record presents, and which bear upon the jurisdiction, can, when analyzed and separately considered, be disposed of chiefly by adjudged cases without any labored examination of the principles involved. The special counts on the notes standing alone might not be sufficient under the eleventh section of the judiciary act (1 Stats. at Large, 78) to give jurisdiction to a circuit court of the United States, without an allegation that the promisees resided in a different state from the promisors. Turner v. Bank of North America, 4 Dall., 8 (§ 1098, infra), and 9 Wheat., 539; Dromgoole v. Farmers' & Merchants' Bank, 2 How., 243, and Keary v. Farmers' & Merchants' Bank of Memphis, 16 Pet., 95.

54. A money count will give jurisdiction on the record without averring the citizenship of maker and payee.

But it is very clear that the money counts aver enough to give jurisdiction to the court below over them, as they state an indebtedness and a promise to pay, made directly by the defendants to the plaintiffs. Mollan v. Torrance, 9 Wheat., 539; Bingham v. Cabbot, 3 Dall., 41. It is well settled likewise that the notes would at the trial be evidence of money had even of an indorsee. 4 Es. Ca., 201; 7 Halst., 141; 6 Greenl., 220; 12 Johns., 90; 8 Cowen, 83; Wild v. Fisher, 4 Pick., 421; Webster v. Randall, 19 id., 13; Ramsdell v. Soule, 12 id., 126; Ellsworth v. Brewer, 11 id., 316; 16 id., 395; State Bank v. Hurd, 12 Mass., 172; 15 id., 69, 433; Page's Administrators v. Bank of Alexandria, 7 Wheat., 35; 2 Wm. Bl., 1269.

But they probably would not alone be sufficient by the eleventh section of the judiciary act, to give jurisdiction over them to a circuit court of the United States, under these money counts any more than the others, without additional evidence that the original promisees resided in a different state from the promisors. 7 Wheat., 35, semb. No decision, however, is made on this point, as from this record we cannot learn but that such additional evidence

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was given, or that other evidence than the notes was not introduced in support of the money counts.

§ 55. Where there was no objection to the jurisdiction, and the record is suffi cient, the inference is that the jurisdictional facts were proved on the trial.

It is not competent for this court now to presume that neither of these kinds of evidence was offered beside the notes. The inference, on the contrary, is the other way, or the defendants would probably have objected to the jurisdiction at the trial, and the jury not found a verdict for the plaintiffs, or the court not have rendered judgment upon it. In the next place, if such a state of things did happen as there having been no additional or other evidence, it is clear from the record that no advantage was taken of it till after final judgment and at the following term of the court, and then by motion only.

§ 56. After final judgment, and at the next term, it is too late to set aside verdict and judgment on motion, on the ground of a supposed want of jurisdiction. But it was then too late after final judgment and at the next term, and by motion only, to set aside the judgment and verdict on account of a supposed want of jurisdiction. At the next term, if no final judgment had yet been rendered, the court might, from its minutes, have had the verdict applied to the counts on which it was in truth found. 2 How., 263; 2 Saund., 171, b; Tidd's Pr., 901. And if in this case it was found on the two special counts alone, the judgment on the verdict might then have been arrested for want of proper averments in them conferring jurisdiction. So it might have been arrested for a misjoinder of bad counts with good, if the verdict had not been applied to the latter, but remained general. Hopkins v. Beedle, 1 Caines, 347; 5 Johns., 476; 1 Chit. Pl., 236, 448; 1 Taunt., 212; 2 Bos. & Pul., 424; Cowp., 276; 3 Wils., 185; 2 Saund., 171, b; 3 Maul. & Selw., 110; Doug., 722. But here jurisdiction did not appear on three of the counts, and also final judgment had been rendered in November previous.

The action was not regularly on the docket at the new term in May following, when the court undertook to set the judgment aside. The power of the court over the original action itself, or its merits, under the proceedings then existing, had been exhausted, ended. Jackson v. Ashton, 10 Pet., 480; Catlin v. Robinson, 2 Watts, 379; 12 Pet., 492; 3 Bac. Abr., Error, T., 6; Co. Lit., 260a; 7 Ves., 293; 12 Ves., 456; 1 Stor. P., 310; 1 Hoff. Pr., 559; 2 Smith, Ch., 14; 9 Pet., 771; 3 Johns., 140; 9 id., 78; Kelly v. Keizer, 3 Marsh., 268. This means the power to decide on it, or to change opinions once given, or to make new decisions and alterations on material points. A mere error in law, of any kind, supposed to have been rendered in a judgment of a court at a previous term, is never a sufficient justification for revising and annulling it, at a subsequent term, in this summary way, on motion. See cases ante; 2 Gall., 386; Cameron v. McRoberts, 3 Wheat., 591; 2 Haywood, 237; Skinner v. Moore, 2 Dev. & Bat., 138; Wash. Bridge Co. v. Stewart, 3 How., 413; and Jackson v. Ashton, 10 Pet., 480; Lessee of Hickey v. Stewart, 3 How., 762; Henderson v. Poindexter, 12 Wheat., 543; Elliott v. Peirsol, 1 Pet., 340; Wilcox v. Jackson, 13 Pet., 511; Rose v. Himely, 4 Cranch, 241.

§ 57. but mere forms of judgments, clerical errors, etc., may be corrected at a subsequent term.

We would not be understood by this to deprive a court, at a subsequent term, of power to set right mere forms in its judgments. 3 Wheat., 591; 3 Pet., 431; 12 Wheat., 10; Lawrence v. Cornell, 4 Johns. Ch., 542. Or power

to correct misprisions of its clerks. The Palmyra, 12 Wheat., 10; Hammer v

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