S.) 312; Hall v. Hall, 43 Ala. 488 (overruling Watson v. Stone, 40 Ala. 451); Bailey . Fitzgerald, 56 Miss. 578 (overruling Trotter v. Trotter, 40 Miss. 704). But a trustee who received confederate treasury notes in payment of a debt due the trust estate is entitled to credit on proof that he received the same upon actual compulsion. Moore v. Mitchell, 2 Woods (U. S.) 483; Ferguson v. Lowery, 54 Ala. 510; s. c., 25 Am. Rep. 718.

The proceedings in the courts of the confederate States, during the war, could not affect a nonresident residing in a loyal State, or a person serving in the army of the United States. Cuyler v. Ferrill, 1 Abbott (U. S.) 16; Pennywit v. Foote, 27 Ohio St. 600. Contra, as to proceedings in courts of loyal States. De Jarnett v. De Giverville, 56 Mo. 440.

1. Any Other Jurisdiction.-By article 730, subd. 5 of the Code of Criminal Procedure in Texas, it is provided that all persons are competent to testify in criminal actions, except, inter alios, "all persons who have been or may be convicted of felony in this State, or in any other jurisdiction." It has been decided that that expression, "any other jurisdiction," is not limited to tribunals of the United States exercising their jurisdiction in Texas, but that one convicted of a felony in the courts of a sister State is thereby disqualified. The court, however, rested its decision partly on the fact that in the first act on the subject, passed March 6th, 1863, the language used was, "all persons who have been or who may be convicted of felony in this or in any other State of the confederate (United) States, or of any other State or kingdom." Petner v. State (Tex.), 5 S. W. Rep. 210.

2. Common Law Jurisdiction. It is provided by § 2165 of the Revised Statutes of the United States, that an alien may be admitted to be a citizen of the United States by "a court of record of any of the States having common law Jurisdiction and a seal and clerk." It has been that county courts, being courts of record, and having a seal and a clerk, have common law juris

diction within that act.-Re Conner, 39 Cal. 98; also city courts having a seal and a clerk and being courts of record, and the judge being clothed with the powers of a county judge, etc.-United States 7. Power, 14 Blatchf. (U. S.) 223; and police courts, which are courts of record, have been held to be courts of common law jurisdiction, within the meaning of the act, and authorized to receive the declarations of intention to become a citizen, when provided with a clerk and a seal. Ex parte Gladhill, 8 Metc. (Mass.) 168. But not when not provided with a clerk. Ex parte Cregg, 2 Curtis (U. S.), 98; State v. Whittemore, 50 N. H. 245.

3. Competent Jurisdiction.--A statute in Indiana provides that the sale of a decedent's real estate by an administrator shall not be avoided on account of irregularities if, inter alia, the sale was authorized by a court of competent jurisdiction, which has been construed to mean jurisdiction of the person as well as of the subject matter. Babbitt v. Doe, 4 Ind. 355

By a statute in Massachusetts, any person imprisoned by force of a lawful warrant issued by a court of "compe tent jurisdiction," shall be entitled to a writ of personal replevin. It has been decided that whatever may be the strict technical meaning of the word "court," the act was clearly intended to include a warrant for the collection of taxes properly issued to a collector by a board of assessors. Aldrich v. Aldrich, 8 Metc. (Mass.) 102.

4. Concurrent Jurisdiction.- Where land in a State was ceded by the State to the United States, but the act of cession provides that the State shall retain "concurrent jurisdiction" therein so far as to serve State process, civil and criminal, it has been held that the United States had nevertheless such sole and exclusive jurisdiction over that land as was necessary under the act of congress of 1790, ch. 9 [36], to give the United States courts jurisdiction to try one accused of committing a larceny on said land. United States v. Davis, 5 Mason (U. S.) 356.

5. Final Jurisdiction.—A statute in Iowa vests jurisdiction in the county

66

1

66

jurisdiction of

"4

judge's court in certain cases, and further provided that "any person aggrieved by the decision of the county judge may appeal therefrom to the district court of the proper county which shall have final jurisdiction over the matter, and shall make such decision in the premises as justice and equity may require." From a decision of a district court in such a case, on appeal from the county court, an appeal was taken to the supreme court of the State, which, however, dismissed the appeal on the ground that there is a clear distinction between judgment and jurisdiction, judgment being the decision of the law, given by the court, as the result of proceedings therein instituted; and jurisdiction having reference to the power conferred to take cognizance of and determine causes according to law, and to carry the same into execution, and therefore the words "final jurisdiction" inhibited the jurisdiction of an appellate tribunal. Lampson v. Platt, I Iowa 556.

1. Further Civil and Criminal Jurisdiction. Under the constitution of New York, as amended in 1869, certain city courts are continued with the powers and jurisdiction they then had, "and such further civil and criminal jurisdiction as may be conferred by law." It has been held that when the constitution speaks of "further civil and criminal jurisdiction," it has respect to the object of the jurisdiction-not to the territory or the persons of suitors-and by said article the courts therein mentioned were continued with the same territorial and personal jurisdiction, with power to the legislature to enlarge their jurisdiction over subjects and matters civil and criminal in their nature, and the proper subjects of civil and criminal prosecutions. The authority is to enlarge their jurisdiction as local courts, not to create new courts with general jurisdiction throughout the State. And therefore the legislature has no power to change the character of these courts by divesting them of their locality and extending their jurisdiction to persons and matters, the subjects of actions, in other parts of the State outside of the localities wherein said courts were established. Landers v. Staten Island R. Co. 53 N. Y. 450.

-

- It is

2. Jurisdiction of the Cause. an established principle that the privilege of parties or witnesses from the service of process extends to all cases where the attendance of the party or witness is given in any matter pending before a lawful tribunal having jurisdiction of the cause. See Greenleaf on Evidence (14th ed.), § 317, vol. 1, p. 409. It has been held that a party to a suit who at the request of his council goes into another State, to assist them in taking depositions before a notary public to be used in the cause, is not free from service of process while there. The court saying, “In taking the depositions the notary performed purely ministerial functions. He could decide no questions, nor determine any matter affecting the rights of the parties to the suit, nor was he, as we have just seen, connected with any court or other tribunal having the power to do so. Hence he could in no sense, in the language of Greenleaf, be said to have 'jurisdiction of the cause,' and therefore he does not fall within the category of any of the tribunals contemplated by the rule in question." the rule in question." Greer v. Young, 120 Ill. 184; s. c., 26 Am. Law. Reg. 372.

3. Jurisdiction Over the Offence. The statute of 7 Geo. IV, c. 64, § 20, remedies in criminal cases, the "want of a proper or perfect venue, where the court shall appear by the indictment

to have had jurisdiction over the offence." It has been decided that the word jurisdiction, as used in that statute, means local jurisdiction, and not jurisdiction with reference to the nature of the offence charged. Queen 7. O'Connor, 5 Ad. & Ell., N. S. 16 (48 E. C. L.).

4. Out of the Jurisdiction. By the act of congress of April 30th, 1790, ch. 36, § 8, the United States courts are given jurisdiction to try and punish certain crimes when committed "out of the jurisdiction of any particular State." These words have been defined to mean out of the jurisdiction of any particular State of the Union, and not out of the jurisdiction of any State foreign or domestic. United States v. Pirates, 5 Wheat. (U. S.) 184.

If a witness is within the State so that process may compel him to testify, although out of the county where the

case is tried, he is not "out of the jurisdiction" within the meaning of subdivision 8 of 1870 of the Code of Civil Procedure of California, so as to permit his testimony given on a former trial to be received in evidence. Meyer v. Roth, 51 Cal. 582.

1. Similar Jurisdiction.- Article 6, §14 of the constitution of Virginia provides for the creation of corporation or hustings courts "with similar jurisdiction which may be given by law to circuit courts of this State." It has been held that the words "similar jurisdiction" were not intended to restrict, but to enlarge the jurisdiction of these courts, and to elevate them to the grade and dignity of circuit courts, and therefore it was competent for the legislature to give to the corporation courts jurisdiction to try cases of felony, though the jurisdiction in such cases was taken away from the circuit courts. Chahoon v. Commonwealth, 21 Gratt. (Va.) 822. 2. Summary Jurisdiction. By the statute 20 and 21 Vict., ch. 43, justices of the peace are empowered, when exercising a summary jurisdiction, to submit a case stated to the courts to get advice on points of law therein involved. It has been queried whether a proceeding to distrain for rates under the English statutes was an exercise of summary jurisdiction such as would enable them to submit such a case stated. Sweetman v. Guest, L. R., 3 Q. B. 262.

3. Within the Jurisdiction.-The act of congress of March 3rd, 1875, § 5 (18 St. U. S. 470, 472), provides: "That if, in any suit commenced in a circuit court or removed from a State court to a circuit couat of the United States, it shall ap pear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto. that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court The said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed," etc. In a case arising under said act, the above words "within the jurisdiction" have been defined as follows: "What is meant by the expression 'within the jurisdiction?' It means 'within the judicial cognizance,' within

the capacity to determine the merits of the dispute or controversy, and to grant the relief asked for. The provision does not give countenance to the idea that the suit or proceeding is to be retained in the circuit court till brought to a formal adjudication on the merits, when, at that ultimate stage, the court must say that the case is not within its jurisdiction, after the party successfully challenging the jurisdiction has been harassed by expenses and injured by delay. But it means what it says, that the dismissal or remanding 'shall' be made whenever, 'at any time' after the suit is brought or removed to the circuit court, it shall appear to the satisfaction of that court that there is, really and substantially, no dispute or controversy of which it has jurisdiction, in the sense above pointed out; the right to have a review by this court of the order dismissing or remanding the suit being given to the aggrieved party at once, instead of his being compelled to await the making of such an order at the end of a full and formal hearing or trial, on issues and proofs, on the merits alleged on either side." BLATCHFORD, J., in Rosenbaum v. Bauer, 7 Sup. Ct. Rep. 633.

The phrase "within the jurisdiction" used in extradition treaties has a broader meaning than that of mere physical territorial jurisdiction, or even of quasi territorial jurisdiction or treaty jurisdiction. It has an enlarged meaning equivalent to the words "authority, cognizance or power of the courts," and when the person whose extradition is sought cannot be tried or punished in the territory where he is found for the crime charged, no reason exists why any court should strain after a construction which would prevent his delivery up to a jurisdiction where he may be tried for the offence. Therefore a subject of Prussia charged with a crime committed in Belgium, with which country we had no extradition treaty, was delivered up to Prussia, whose courts had jurisdiction to try Prussian subjects for crimes committed in foreign countries. Ex parte Stupp or Vogt, 11 Blatchf. (U.S.) 124, 18 Int. Rev. Rec. 18.

In California it is requisite that the subscribing witness to a written instrument should be produced if he is within

JUROR.--One of a jury.2

the jurisdiction of the court. This has been interpreted to mean within the State. Stevens . Irwin, 12 Cal. 306.

act.

The English Judicature act of 1875, ch. 1, order 11, rule 1, provides inter alia that "Service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the court or a judge whenever . . . any for which damages are sought to be recovered was done within the jurisdiction. It has been decided that this act did not contemplate any alteration of the law, and that as under the law prior to the passage of that act courts had no jurisdiction in actions in personam to recover damages for injuries inflicted on the high seas, unless the defendants could have been served with a citation within the territorial jurisdiction of the court, therefore the above words in the act within the jurisdiction" must mean within the territorial jurisdiction, and leave to issue such a summons of which notice would be given out of the jurisdiction was refused. In re Smith et al., L. R., 1 Prob. Div. 300.

1. Jurisdiction Clause.-"The sixth part of the bill is what is called the jurisdiction clause, and is intended to give jurisdiction of the suit to the court by a general averment that the acts complained of are contrary to equity, and tend to the injury of the plaintiff, and that he has no remedy, or not a complete remedy, without the assistance of a court of equity. But this clause is wholly unnecessary, for it will not of itself give jurisdiction to the court. If the case made by the bil! is otherwise clearly of equitable jurisdic tion, the court will sustain it, although the clause is omitted. If, on the contrary, the case so made is not of equitable jurisdiction, the bill will be dismissed notwithstanding such an averment is made in it. For the court cannot assume any jurisdiction, except upon cases and principles which clearly justify its interposition. At best, there fore, the clause is a mere superfluity." Story on Equitable Pleadings (9th ed.), §34; Mitford on Pleadings in Chancery (5th ed.), 43, 44; Barton's Suit in Equity Ingersoll's ed.), p. 31.

The following form is given in Van Heythewsen's Equity Draftsman (4th Am. ed.), p. 5:

"All which actings, doings, pretences and refusals are contrary to equity and good conscience and tend to the manifest wrong and injury of your orators in the premises. In consideration wher‹ of, and forasmuch as your orators can only have adequate relief in the pren. ises in a court of equity where matters of this nature are properly cognizable and relievable. To the end, therefore," The 21st rule of the Equity Rules of the Supreme Court of the United States provides that "The plaintiff, in his bill, shall be at liberty to omit, at his option, . the jurisdiction

clause of the bill."

But it is necessary that the bill should state a clause within the appropriate jurisdiction of the court as a court of equity. Bateman v. Willoe, 1 Sch. & Lef. 201, 204; Chase v. Palmer, 25 Me. 341.

2. On a trial for murder the court, in commenting on the evidence necessary to produce conviction, said: "He who is to pass on the question (of guilt or innocence) is not at liberty to disbelieve as a juror while he disbelieves as a man." This was assigned as error, but was affirmed, the court, KNOX, J., saying: "It is made matter of complaint that the judge in his charge, among other remarks, said that he who is to pass on the question,' etc. Notwithstanding the high authority which sanctions the use of its language, it is possible that some jurors may occasionally be misled by it. Men, in their social conduct and business transactions, often act on bare suspicion, without evidence, and this some jurors might possibly suppose is what is meant by their belief as men, contradistinguished from their belief as jurors. But it is impossible for us to supply jurors with intelligence and judgment, and equally out of our power to prescribe to the courts below the language which the judges are to use in communicating instructions. The judge who endeavors to express his thoughts in a style so plain and simple that he will be readily understood by the most unlearned men on the jury best performs

(e) Examination on the Voir Dire, 358.

6. Discretion of the Court Generally, 359.

a. Excluding Jurors, 360. b. Excusing Jurors, 361.

7. Swearing, 362.

a. Method, 362.

b. Time, 362.

c. Form, 362.

d. Record, 363.

e. Reswearing, 363.

8. Discharge of Fury Before Verdict-Feopardy, 364.

a. Discharge of the Whole Body, 364.

b. Discharging Individual Furors After Swearing, 365.

VII. Review of Objections, 365.

1. Objections Known and Withheld, 365.

2. Injury to the Challenger the Test, 366.

[366.

VIII. Continuance and Adjournment, IX. Trial of the Issue, 366.

1. Right to Open and Close, 366

2. Witnesses, 366.

3. Evidence, 366.

1. Custody, 371.

2. Intoxicating Liquors, 372.
3. Improperly Procured Re-
freshments, 372.

4. Sleeping During Trial, 373.
5. Reading Newspapers, 373.
6. Communicating with Third
Parties, 373.

7. Separation, 374. [Court. 376.
8. Receiving Evidence Out of
9. Books and Papers, 376.
10. Illegal Methods of Arriving
at a Verdict, 378.

11. Misconduct, How Shown, 378. 12. Effect of Misconduct, Waiver, XI. Verdict, 380.

1. General Verdicts, 380.

2. Special Verdicts, 380.

[379.

3. Delivery of the Verdict, 380. 4. Setting Aside the Verdict, 380

XII. Fees, 380.

XIII. Judgment, 380.

(a) Time, 356.

(b) Order, 356.

(d) Trial Proper, 357

(c) Form, 357.

XIV. Error and Appeal, 380.