§ 108. A defendant against whom a judgment had been rendered, payable in specie, paid to the deputy clerk the amount of the judgment in Indiana paper, stating that plaintiff had agreed to accept this, and took a receipt. Plaintiff denied the agreement and took out execution. On this state of facts the court refused to set aside the execution on motion. Subsequently a motion was made for a rule on the clerk to pay to defendant the money received by his deputy. Held, this motion did not raise the question of the clerk's power to give a discharge on receiving the amount of the judgment, but the custom of so doing would ordinarily fix the liability of the clerk. This, however, could not be considered a bona fide payment, and the act of the deputy out of the line of his duty would not bind the clerk. Welddes v. Edsell, * 2 McL., 366.

§ 109. No reporter has or can have any copyright in the written opinions delivered by the court. Wheaton v. Peters, 8 Pet., 668.

§ 110. Writ protects officer.- When an officer is given a writ directing him to seize certain property, described in the writ, as in writs of replevin, orders of sequestration in chancery and process in admiralty, if the court had jurisdiction and the officer takes the property described, he is protected by his writ, no matter whose the property is. But when the writ only commands the officer to seize the property of a certain person, the officer must see to it at his peril that the property he seizes belongs to the person named in his writ. Buck v. Colbath, 3 Wall., 343.

§ 111. Liability of officer where there is no jurisdiction.- Where a court has no jurisdiction of the subject-matter of a case, yet assumes it, or where an inferior court has jurisdiction over the subject-matter, but is bound to adopt certain rules in its proceedings, from which it deviates, whereby the proceedings are rendered coram non judice, the ministerial officer who executes the decree of the court is liable to an action for false imprisonment. Dynes v. Hoover, 20 How., 80.

§ 112. Leave to sue receiver.- When a state court appoints a receiver of a railroad, and allows him to operate it, a court in a different jurisdiction will not entertain a suit against such a receiver unless leave to sue him has first been obtained from the court which appointed him. And this leave is a jurisdictional fact, and if the lack of it is pleaded in abatement of such suit, judgment must be for the defendant. Barton v. Barbour, 14 Otto, 131.

§ 113. Records.-The minutes made by a clerk of court to refresh his memory in making up the record are not the record. The history of the case written at length in the record book, in technical language, is the record. When so written the clerk has no power to alter it, but the court may, it seems, order clerical errors to be amended. Barnes v. Lee, 1 Cr. C. C., 431. See § 47.

§ 114. The "judgment roll" mentioned in section 269 of the Oregon code is not the whole record at which a federal court will look to see whether a state court had jurisdiction of a case in which it has given judgment. Neff v. Pennoyer, 3 Saw., 281.

§ 115. The maxim that equity looks upon that as done that ought to have been done does not supply the omission of part of a record of judicial proceedings by the clerk of the court, whose duty it was to have recorded them. King v. French, 2 Saw., 445.

§ 115a. On an application for an authentic copy of an opinion of the court, Marshall, C. J., decided that the reporter only could furnish a certified copy, and that the clerk could certify, under the seal of the court, that he is the reporter, if this should be required. Anonymous,* 3 Pet., 397.

§ 116. The dockets of the courts of the District of Columbia are its records. Washington, etc., Steam Packet Co. v. Sickles, 24 How., 338.

§ 117. The certificate of a clerk of court cannot certify the legal character of a paper of which a transcript is appended, e. g., that it is a judgment roll. He can only certify that the transcript is a true copy of the original. Alexander v. Knox, 6 Saw., 61.

§ 118. The errors for which a bill of review will lie must be apparent on the record. The record means the bill, answer and other pleadings and decree. In England the error must be apparent on the decree, but the decree recites the substance of the bill, answer and facts on which the decree is based. Whiting v. Bank of United States, 13 Pet., 14.

§ 119. The proceedings to restore lost or destroyed records of the United States circuit court must conform to the acts of congress (16 U. S. Stat., 474, and 17 U. S. Stat., 41), and not to any state laws. Turner v. Newman, 3 Biss., 308.

§ 120. The admission of an alien to citizenship is a judicial act, and must be found upon the records of the court. Where docket entries are regarded by the court in which they are made as records, they are records in other courts when used as evidence. In re Coleman, 15 Blatch., 420.

§ 121. The power to hear and determine a cause is jurisdiction, and if a petitioner states such a case that the court upon demurrer could give him judgment, the court has jurisdiction. United States v. Arredondo, 6 Pet., 709.

§ 122. Nature of jurisdiction - Exceptions to it. The jurisdiction of courts is a branch of the sovereign power of a nation. It is therefore absolute and exclusive within the territory of the nation, except when the nation itself has, either expressly or impliedly, allowed exceptions to it. In accordance with principles of international law, one of these exceptions is the case of national ships of war, entering the port of a friendly power open for their reception, which are exempt from the jurisdiction of that power. Schooner Exchange v. M'Faddon, 7 Cr., 135. § 123. Jurisdiction of defendant necessary. A decree of a court made without notice to or appearance by the defendants is without jurisdiction. Hollingsworth v. Barbour, 4 Pet., 467.

§ 1:4. Non-resident defendant.- When a purely personal suit is brought against a nonresident defendant in a state court, a judgment upon service by publication is void, except it touches some property in the state or defines a status of the plaintiff towards the defendant. Galpin v. Page, 3 Saw., 111.

§ 125. It is a well established rule, that, in order to give a court jurisdiction of a suit against one who does not reside within its jurisdiction, there must either be personal service upon him or a voluntary appearance by him, or the suit must be in rem against some property of his within the jurisdiction of the court. Pennoyer v. Neff, 5 Otto, 72).

§ 126. Service on agent of corporation.- A judgment obtained in a state court, when sued upon in a federal court, may be shown to have been obtained by fraud or that the court had no jurisdiction. When a judgment is obtained in a state court against a corporation incorporated in another state, and the only service upon the corporation was by service upon its agent in the state where the suit was brought, but such agent was not authorized to receive service, the judgment in that suit is void. Warren Manuf'g Co. v. Ætna Ins. Co., 2 Paine, 511.

§ 127. Objection to jurisdiction.— A defendant who is served with process cannot raise the question of jurisdiction as to another defendant named in the writ, but who was not served, and is therefore no longer in the case. Craig v. Cummings,* 2 Wash., 505.

§ 128. A plea that a cause of action did not arise within the local jurisdiction of the court is a plea in bar when made before a court whose jurisdiction is locally limited. Smith v. M'Cleod, 1 Cr. C. C., 43.

§ 12). Objection to the jurisdiction may be made on motion for a new trial. Codman v. The Vermont & Canada R. Co.,* 17 Blatch., 3.

§ 130. When want of jurisdiction appears on the face of the pleading, the objection should be taken by demurrer; when not, then by plea; a motion to dismiss is not proper. Varner v. West,* 1 Woods, 491.

§ 131. Jurisdiction at law and in equity. In general, a court of equity is the more eligible tribunal for cases involving latent defects in a land title, for as the pleadings must specify the defects, there can be no surprise against the tenant; but where a grant is absolutely void, as where a state has no title to a thing it grants, or an officer had no authority to issue the grant, the validity of the grant is examinable at law. Polk v. Wendal, 9 Cr., 99.

132. Courts of law and courts of equity have concurrent jurisdiction of some cases of fraud. Seabury v. Field, McAl., 64.

§ 133. The court may strike out the name of a party to prevent its jurisdiction from being ousted. Greeley v. Smith,* 3 Story, 77.

§ 134. Power of state to regulate jurisdiction of its courts. Each state has full power to make political subdivisions of its territory for municipal or judicial purposes and to regulate at pleasure the jurisdiction of its courts. Missouri v. Lewis, 11 Otto, 30.

§ 1.5. Power of legislature over jurisdiction.- In an action of ejectment, it was held that the state legislature has power to pass laws affecting the jurisdiction of courts, though the constitution prescribes the jurisdiction. Bank of Hamilton v. Dudley, 2 Pet., 524.

136. An act giving a limited jurisdiction should be construed strictly as regards the extent of the jurisdiction, but liberally with regard to the mode of proceeding. Russell v. Wheeler, Hemp., 6.

§ 137. Jurisdiction by seizure of property.-Under the acts of congress of August 6, 1861, and July 17. 1872, for the confiscation of the property of rebels, a seizure may be made of stocks in a corporation by serving a notice on the officers of the corporation. Seizure of some kind is necessary to give the court jurisdiction to condemn, but the seizure is to be as near as may be like the seizure in admiralty and revenue cases, and in admiralty the practice exists of seizing property by notice, when it is of such a nature as not to be reduced to actual possession. Miller v. United States, 11 Wall., 292.

§ 138. In proceedings in rem, the proper forum is that within whose jurisdiction the res is found at the time of beginning suit. The Bee, 1 Ware, 337.

§ 139. Jurisdiction as affected by war. A court of South Carolina has no jurisdiction to decree a sale of real estate within its jurisdiction, but belonging to residents in one of the 49

VOL XI-4

loyal states during the war. although the action was begun prior to the war. Livingston v. Jordan,* 10 Am. L. Reg. (N. S.), 53.

§ 140. During the occupation of New Orleans by federal troops in the war of the rebellion, the municipal courts were allowed to continue the proceedings by the general in command. He was sued in one of those courts for trespass to goods, and defaulted. The supreme court of the United States held that the municipal court had no jurisdiction over the general, and the judgment was void. (CLIFFORD and MILLER, JJ., dissenting.) Dow v. Johnson, 10 Otto, 166. 141. The existence of war closes the courts of each belligerent to the citizens of the other, but it does not prevent the citizens of one belligerent from taking proceedings for the protection of their own property in their own courts against the citizens of the other, whenever the latter can be reached by process." Hence "the citizens of California and Illinois have a right to seek the courts of the United States in Texas, or to proceed with suits commenced therein previous to the war, to protect their property there situated from seizure, invasion or disturbance by citizens of that state, so soon as those courts have opened, whether official proclamation were made or not of the cessation of hostilities." Masterson v. Howard, 18 Wall., 99. § 142. Jurisdiction in prize cases.— To the courts of the nation to which the captor belongs, and from which his commission issues, exclusively appertains the right of adjudicating on all captures and questions of prize; but if a captured vessel is brought or voluntarily comes infra præsidia of a neutral nation, that nation will extend its examination so far as to see whether a trespass has been committed on its own neutrality by the vessel which has made the capture. The Estrella, 4 Wheat., 308. See WAR.

§ 143. The question of prize or no prize belongs exclusively to the courts of the captor; but if the captor infringe the neutrality of a neutral state, and is brought before a court of that state, that court may examine into the question of such infringement. The Antelope, 10 Wheat., 125.

§ 144. The courts of a neutral have jurisdiction over all prizes taken by the public ships of war of a belligerent and brought within the local jurisdiction of the neutral court. Such court has, however, no jurisdiction over the public ships of war. They are responsible only to their own sovereign. The Santissima Trinidad v. The St. Ander, 7 Wheat., 351.

$145. When prize taken by a belligerent is brought into a neutral port and there libeled and taken possession of by the court in order to decide the suit, such possession of the court ousts the possession of the captors; and a decree of condemnation procured by the captor in a court of his own country, and after the suit in the neutral court is begun, and the possession of the captor divested, does not affect the decree rendered in the neutral court. Ibid.

§ 146. No jurisdiction conferred by unconstitutional law. When a state constitution provides that "the right to trial by jury shall remain inviolate," and also that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury nor shall he be deprived of life, liberty or property unless by the judgment of his peers or the law of the land," a law passed by the state legislature which provides that when liquors unlawfully kept for sale are seized and condemned before a justice of the peace, and a fine inflicted on the owner, he must, if he wishes to appeal to a court where he can have a jury trial, give a bond with sureties, to pay any fine which may be there imposed and costs, is unconstitutional as not being according to the law of the land. Any order, therefore, made by the justice is without his jurisdiction and void. Greene v. Briggs, 1 Curt., 333.

§ 147. A state law conferring certain criminal jurisdiction upon justices of the peace to inflict fine and forfeiture, a trial by jury being at the same time denied, unless the accused complies with certain conditions which he is not bound to comply with, is unconstitutional and wholly void. If a justice makes an order under the statute, he acts without jurisdiction, and his order is void, and he and all ministerial officers who execute the order are trespassers. Ibid.

§ 148. Collateral attack.—If a court in which proceedings are had has jurisdiction to render the judgment which it does render, no error in its proceedings which does not affect the question of jurisdiction will render the proceedings void, nor can such errors be considered when the judgment is brought collaterally into question. McGoon v. Scales, 9 Wall., 30.

§149. Where land was attached under the provisions of a state statute, and sold on execution, and the validity of the sale affirmed by a court of general jurisdiction of the state, it was held that this affirmation was conclusive in the United States supreme court, since it appeared that the court making the decision had jurisdiction of the case. Ibid.

§ 150. Agreement to arbitrate.— A contract which binds the parties not to bring any disputes arising out of the contract to a court of law, but to submit them to an arbitrator, does not oust the courts of jurisdiction, and is valid. Fox v. The Railroad, 3 Wall. Jr., 245.

§ 151. Decree of sale under attachment.-The judgment of a court of general jurisdiction ordering a sale of property seized on attachment is a judicial affirmation of the validity of the seizure. Voorhees v. Bank of the United States, 10 Pet., 472.

§ 152. Order for the distribution of funds in court.— Where, on a bill to foreclose a mortgage by sale, a fund is paid into court by the defendants as payment of the mortgage debt, and by agreement of the solicitors of plaintiff and defendants this sum is to be paid out to the plaintiff's attorney for previous services for his client, and an order to this effect is made by the court. this order is wholly without the jurisdiction of the court. Wolfe v. Lewis, 19 How., 281. § 153. Void decree.- Where a court dismisses an appeal of a suit for land because neither party has an interest in the land, this decree is void for want of jurisdiction, and binds nobody. Lownsdale v. Portland, Deady, 7.

§ 154. When jurisdiction must appear upon the record.- Courts of general jurisdiction need not show their jurisdiction upon the face of the pleadings. Courts of limited and special jurisdiction must. Bank of the United States v. Voorhees, 1 McL., 223.

§ 155. When a court exercises a limited and special jurisdiction, all the facts necessary to support that jurisdiction should appear of record. So held in regard to the repeal of a patent under the summary process given by section 10 of the patent act of February 21, 1793, chapter 11. Ex parte Wood, 9 Wheat., 606.

§ 156. When a statute gives a summary process as a means of enforcing a right, e. g., a summary process to collect a tax by sale of land, this jurisdiction being special and limited, every fact necessary to give the court jurisdiction, e. g., a report of the collector that there is no personal property on which the tax may be levied, must appear on the record; if not, the proceedings are coram non judice and void, not merely voidable. Thatcher v. Powell, 6 Wheat., 125.

§ 157. When a special limited jurisdiction is conferred on a court, such as the jurisdiction conferred by act of congress upon the courts of Florida in regard to disputed Spanish land claims, any suit brought in such special limited jurisdiction must contain in the record allegations showing the jurisdiction of the court. United States v. Clarke, 8 Pet., 444.

§ 158. Presumptions as to jurisdiction.— After verdict a court will indulge every reasonable intendment in favor of its jurisdiction. Duryee v. Webb,* 16 Conn., 558.

§ 159. All presumptions are made in favor of the record of proceedings in a court of general jurisdiction, or of limited jurisdiction, if the jurisdiction plainly appears. Miller v. United States, 11 Wall., 299.

§ 160. Every presumption is made in favor of the jurisdiction and regularity of proceedings in a court of general jurisdiction. When, however, a person relies on the judgment of a court of limited or special jurisdiction, he must show that the case was within such jurisdiction. Tolmie v. Thompson, 3 Cr. C. C., 123.

§ 161. When a decree is given by a court of general jurisdiction, and it appears by the record that the plaintiff may have been either a natural person or a board of commissioners which was not a body corporate and had no authority to bring suit, it will be presumed that the former was the plaintiff. Alexander v. Knox, 6 Saw., 60.

§ 162. It was held that while there is a presumption in favor of the jurisdiction of courts of general jurisdiction, yet that in the federal courts no such presumption exists as to the jurisdiction of state courts as to persons or property outside their territorial jurisdiction. In such cases the acquiring of jurisdiction must appear affirmatively on the record. Galpin v. Page, 3 Saw., 109.

§ 163. As the county courts of Oregon, when sitting as courts of probate, are, by statute, courts of general jurisdiction, an allegation of a jurisdictional fact in the record of a probate decree, e. g., that the intestate was an inhabitant of the county, is conclusively presumed to be true in a collateral proceeding. Holmes v. Oregon & Cal. R. Co., 7 Saw., 384.

§ 164. Any judgment of any court may be collaterally attacked on the ground of want of jurisdiction. A court of general jurisdiction is presumed, in a collateral proceeding, to have had jurisdiction. But this presumption only extends to persons and subject-matter within the territory of the court. If a judgment is rendered against a person or property outside such territory, there is no presumption of jurisdiction in favor of courts of general jurisdiction. Gray v. Larrimore, 4 Saw., 644.

§ 165. When a state statute provides that execution may issue after the death of the judgment debtor, if notice is given to his executors or administrators, the supreme court of the United States will not presume that such notice has been given, so as to confer jurisdiction on the state court to issue an execution. The presumption as to jurisdiction does not apply. Ransom t. Williams, 2 Wall., 318.

§ 166. When by a state statute a judgment in a purely personal action is allowed to be rendered after service, if the defendant cannot be found, on any white person of his family above fourteen years of age, at his dwelling-house or usual place of abode, this mode of acquiring jurisdiction being a departure from the common law rule, the usual presumption in favor of the jurisdiction of superior courts will not arise, but every fact necessary to give the service completeness must be alleged in the officer's return. Settlemier v. Sullivan, 7 Otto, 447.

III. JURISDICTION OF UNITED STATES COURTS.

1. In General.

SUMMARY - Presumptions, § 167.— Objection to, how taken, § 168.

§ 167. There are no presumptions in favor of the jurisdiction of the federal courts. Where jurisdiction is claimed on the ground that the action arose under the laws of the United States, the fact must appear on the record. Ex parte Smith, § 169.

§ 168. Where the citizenship of the parties is properly averred, objection to the jurisdiction of the court on this ground may be taken only by plea in abatement. Carter v. Bennett, S$ 170-172.

[NOTES.-See SS 173-227.]

EX PARTE SMITH.

(4 Otto, 455, 456. 1876.)

PETITION FOR A MANDAMUS to U. S. Circuit Court, Western District of Ten

nessee.

Opinion by WAITE, C. J.

STATEMENT OF FACTS.-The relators, citizens of the state of Tennessee, sued Lewis Anderson, also a citizen of that state, December 31, 1873, in the circuit. court of the United States for the western district of Tennessee, to recover possession of certain lands in that district to which they claimed title in fee through a certificate of the United States direct tax commissioners, under the "Act for the collection of direct taxes in insurrectionary districts within the United States, and for other purposes," approved June 7, 1862 (12 Stat., 422). The declaration is as follows:

"The plaintiff sues the defendant to recover the following tract of land lying in Shelby county, district No. -, and bounded as follows: Lots Nos. two (2), three (3), four (4) and sixteen (16), Cannovan's subdivision, sixty by one hundred and sixty (60 by 160) feet, assessed to W. II. Bowers in 1860, containing

of which the plaintiff was possessed, claiming in fee, through a certificate of the United States direct tax commissioners, Jno. B. Rodgers, E. P. Ferry and Delino F. Smith,, under an act of congress entitled an act for the collection of direct taxes in insurrectionary districts within the United States, and for other purposes, and the acts amending the same, on the 1st of January, 1865; and after such possession accrued, the defendant, on the 1st day of December, 1865, entered thereupon, and unlawfully withholds and detains the same, together with $5.000 due for detention thereof."

Summons was served April 24, 1874, and June 12th Anderson moved to dismiss the suit for want of jurisdiction, as the parties were all citizens of Tennessee. This motion was granted March 1, 1877; and the value of the property in dispute being, as is alleged, less than $5,000, Smith and Hurst now ask for a mandamus requiring the circuit court to take jurisdiction, and hear and determine the cause upon its merits. Jurisdiction is claimed for the circuit court under section 2 of "An act further to provide for the collection of duties on imports," approved March 2, 1833 (4 Stat., 632), which provides "that the jurisdiction of the circuit courts of the United States shall extend to all cases, in law or equity, arising under the revenue laws of the United States, for which other provisions are not already made by law."