formly has been, that the course of the judicial department is marked out by law: we must tread the direct and narrow path prescribed for us. As this court has never grasped at ungranted jurisdiction, so it will never, we trust, shrink from that which is conferred upon it." Ibid.

state."

327. The plaintiff in error was indicted in the superior court for the county of Gwinnett, in the state of Georgia, "for residing on the 15th July, 1831, in that part of the Cherokee uation attached by the laws of the state of Georgia to that county, without a license or permit from the governor of the state, or from any one authorized to grant it; and without having taken the oath to support and defend the constitution and laws of the state of Georgia, and uprightly to demean himself as a citizen thereof; contrary to the laws of the said To this indictment he pleaded that he was, on the 15th July, 1831, in the Cherokee nation, out of the jurisdiction of the court of Gwinnett county; that he was a citizen of Vermont, and entered the Cherokee nation as a missionary, under the authority of the president of the United States, and has not been required by him to leave it; and that, with the permission and approval of the Cherokee nation, he was engaged in preaching the gospel: that the state of Georgia ought not to maintain the prosecution, as several treaties had been entered into by the United States with the Cherokee nation, by which that nation was acknowledged to be a sovereign nation, and by which the territory occupied by them was guarantied to them by the United States; and that the laws of Georgia, under which the plaintiff in error was indicted, are repugnant to the treaties, and unconstitional and void; and also that they are repugnant to the act of congress of March, 1802, entitled "an act to regulate trade and intercourse with the Indian tribes." The superior court of Gwinnett overruled the plea; and the plaintiff in error was tried and convicted, and sentenced "to hard labour in the penitentiary for four years." Held, that this was a case in which the supreme court of the United States had jurisdiction by writ of error, under the twenty-fifth section of the "act to establish the judicial courts of the United States," passed in 1789. Wooster v. The State of Georgia, 6 Peters, 515.

to the judiciary act, and the rule and practice of the court, is regularly before the court. Ibid.

329. The words, "matter in dispute," in the act of congress respecting appeals to the supreme court of the United States, seem appropriated to civil causes, where the subject in contest is of a value beyond the sum mentioned in the act. But in criminal cases, the question is the guilt or innocence of the accused; and although he may be fined upwards of one hundred dollars, yet that is, in the eye of the law, a punishment for the offence, and not the particular object of the suit. United States v. Moore, 3 Cranch, 159; 1 Cond. Rep. 480.

330 The verdict or judgment does not ascertain the value of the matter in dispute between the parties. To determine this, recurrence must be had to the original controversy; to the matter in dispute when the action was instituted. The descriptive words of the statute regulating the jurisdiction of the supreme court in writs of error and appeals, point emphatically to this criterion; and, in common understanding, the penalty of the bond, and not the thing paid, constitutes the matter in dispute between the parties. The nature of the case must guide the court, and whenever the law makes a rule it must be obeyed. Wilson v. Daniel, 3 Dall. 401; 1 Cond. Rep. 185.

331. Where the value of the matter in dispute did not appear in the record, in a case brought up by writ of error, the court allowed affidavits to be taken to prove the same, on notice to the opposite party. The writ of error not to be a supersedeas. Course v. Stead's Ex'r, 4 Dall. 22; 1 Cond. Rep. 217.

332. The supreme court will permit viva voce testimony to be given of the value of the matter in dispute, in a case brought up on a writ of error or by appeal. The United States v. The Brig Union et al., 4 Cranch, 216; 2 Cond. Rep. 91.

333. After deciding the value of the sum in controversy by the weight of the evidence before the court, the court will not continue the cause for the party to produce further evidence on the subject. İbid.

334. The plaintiff below claimed more than two thousand dollars in his declaration, but obtained a verdict for a less sum. The appellate jurisdiction of the supreme court depends on the sum or value in dispute between the parties, as the case stands upon the writ of error in this court; not on that which was in dispute in the circuit court. Gordon v. Ogden, 3 Pete i, 33.

335. If the writ of error be brought by the plaintiff below, then the sum the declaration shows to be due may still be recovered, should the judgment for a smaller sum be reversed; and, consequently, the whole sum claimed is in dispute. Ibid.

laws, as regulating the modes of proceeding in suits at common law, the adoption is expressly confined to those in force in September, 1789. It does not recognise the authority of any laws of this description which might be afterwards passed by the states. The system as it then stood is adopted, "subject, however, to such alterations and additions as the said courts, respectively, shall, in their direction, deem expedient, or to such regulations as the supreme court of the United States shall think proper, from time to time, by rule, to prescribe to any circuit or district court concerning the same. The Bank of the United States v. Halstead, 10 Wheat. 51; 6 Cond. Rep. 221.

352. This provision enables the several courts of the Union to make such improvements in the forms and modes of proceeding as experience may suggest; and especially to adopt such state laws on this subject as might vary to advantage the forms and modes of proceeding which prevailed in September, 1789. Ibid.

353. At an early period after the organization of the federal courts, the rules of practice in force in the state courts, which were similar to the English practice, were adopted by the judges of the circuit court. A subsequent change in the practice of the state courts will not authorize a departure from the rules adopted in the circuit court. Anonymous, 1 Peters' C. C. R. 1.

354. The rules of practice for transacting the business of the courts form the law of the court; and it is in relation to the federal courts, a law arising under the constitution of the United States, and consequently not subject to state regulations. It is in reference to this principle, that the seventeenth section of the judicial act authorizes the courts of the United States to make all necessary rules for the orderly conducting business in the said courts, provided the same are not repugnant to the laws of the United States; and under this power, the different circuit courts at their first session adopted the state practice as it then existed; which continues to this day in all the states, except so far as the courts have thought proper from time to time to alter and amend it. Golden v. Prince, 3 Wash.

C. C. R. 313.

355. It is not necessary to state in the record of a case in the circuit court the absence of the district judge, to show that the court was properly constituted; a judge of the supreme court holding the same in the absence of the district judge. Bingham, Plaintiff in Error v. Cabot et al., 3 Dall. 19; 1 Cond. Rep. 13.

356. A circuit court, though an inferior court in the language of the constitution, is not so in the language of the common law; nor are its proceedings subject to the scrutiny of those narrow rules, which the caution or jealousy of the courts at Westminster, long applied to the courts of that denomination; but are entitled to as liberal intendments, and presumptions, in favour of their regularity, as those of any supreme court. Turner, Adm'r of Stanly v. The Bank of North America, 4 Dall. 8; 1 Cond. Rep. 205.

357. A circuit court is of limited jurisdiction, and has cognizance, not of cases generally, but VOL. I.-41

only of a few specially circumstanced; amounting to a small portion of the cases which an unlimited jurisdiction would embrace; and the fair presumption is not, as with regard to a court of general jurisdiction, that a cause is within its jurisdiction, unless the contrary appears; but rather that a cause is, without its jurisdiction, unless the contrary appears. This renders it necessary, inasmuch as the proceedings of no court can be deemed valid further than its jurisdiction appears or can be presumed, to set forth upon the record of a circuit court the facts or circumstances which give jurisdiction, either expressly, or in such a manner as to render them certain by legal intendment. Ibid.

358. A cause may be transferred by an act of congress from one inferior tribunal to another. Stuart v. Laird, 1 Cranch, 299; 1 Cond. Rep. 316.

359. The justices of the supreme court having by practice and acquiescence under it, for a period of several years, commencing with the organization of the judicial system, sat as circuit judges, this practical exposition of the constitution is too strong to be shaken or controlled. Ibid.

360. The jurisdiction of the circuit court of the United States extends to a case between citizens of Kentucky, claiming lands exceeding the value of five hundred dollars, under different grants, the one issued by the state of Kentucky, and the other by the state of Virginia, upon warrants issued by Virginia, and locations founded thereon prior to the separation of Kentucky from Virginia. It is the grant which passes the legal title to the land; and if the controversy is founded upon the conflicting grants of different states, the judicial power of the courts of the United States extends to the case, whatever may have been the equitable title of the parties prior to the grant. Colson et al. v. Lewis, 2 Wheat. 377; 4 Cond. Rep. 168.

361. The United States, proceeding according to the provisions of the act of congress, passed the 15th of May, 1820, entitled "an act for the better organization of the treasury department," issued a warrant to the marshal of the District of Columbia, for a balance alleged to be due by Joseph Nourse, late register of the treasury, and the property of Mr. Nourse was attached for the alleged balance. On the application of Mr. Nourse, the district judge of the District of Columbia issued an injunction to stay the proceedings, and after reference of the accounts to auditors appointed by him, and a report by them, stating a balance of eleven thousand eight hundred and thirteen dollars and fifty-nine cents, to be due by the United States to Mr. Nourse, the district judge made a decree that the injunction should be perpetual. The United States appealed to the circuit court, and the decree for a perpetnal injunction was affirmed by that court. The United States appealed to the supreme court; and on a motion to dismiss the appeal it was held, that no appeal is given by the act of congress from a decree of the district judge, in such a case, to the circuit court. The United States v. Nourse, 6 Peters, 470.

362. The special jurisdiction created by the

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act of congress, must be strictly exercised within its provisions. A particular mode is pointed out by which an appeal from the decision of the district judge may be taken by the person against whom proceedings have issued; consequently, it can be taken in no other way; no provision is made for an appeal by the government; of course, none was intended to be given to it. Ibid. 363. It appears that no provision is made in the general act organizing the courts of the United States, to authorize an appeal from the judgment or decree of the district court to the circuit court, except in cases of admiralty and maritime jurisdiction. On the principle of the case of the United States v. Goodwin, the appeal in this case cannot be maintained. If it be a case in chancery, no provision is made in the general law to appeal such a case from the district to the circuit court. Ibid.

364. The district judge cannot sit in the circuit court, in a cause brought by writ of error from the district court, and such a case cannot be brought from the circuit to the supreme court upon a certificate of the division of opinion of the judges. United States v. Lancaster, 5 Wheat. 434; 4 Cond. Rep. 720.

365. The district judge may alone hold a circuit court, although there be no judge of the supreme court allotted to that circuit. Pollard et al. v. Dwight et al., 4 Cranch, 421; 2 Cond. Rep. 157.

366. The circuit court has jurisdiction in a suit in equity to stay proceedings upon a judgment at law between the same parties, although the subpoena, &c., be served upon the defendant out of the district in which the court sits. Logan v. Patrick, 5 Cranch, 288; 2 Cond. Rep. 259.

367. A writ of error does not lie to remove a civil cause from the circuit to the supreme court, which has been carried to the circuit from the district court. United States v. Goodwin, 7 Cranch, 108; 2 Cond. Rep. 434.

368. There is no act of congress which authorizes a circuit court to issue a compulsory process to the district court, for the removal of a cause from that jurisdiction, before a final judgment or decree is pronounced. If a certiorari should issue in such case, the district court may and ought to refuse obedience to the writ, and after the cause is thus removed, either party may move for a procedendo, or pursue the cause in the district court, as if it had not been removed. Patterson v. The United States, 2 Wheat. 221; 4 Cond. Rep. 98.

369. But if, instead of taking advantage of this irregularity, the defendant enters his appearance to the suit in the circuit court, takes defence and pleads to issue, it is too late after verdict to object to the irregularity. The cause will be considered as an original one in the circuit court, made so by consent of parties, even though no declaration, de novo, should have been filed in the circuit court. Ibid.

370. A district judge who is on the bench during the trial of a cause brought from the district to the circuit court, and if he did not sit or take part in the cause, was absent in the meaning of

the act of congress. Bingham v. Cabot, 3 Dall. 19; 1 Cond. Rep. 13.

371. The circuit courts of the United States have jurisdiction of a robbery committed on the high seas, under the eighth section of the act of April 30th, 1790, ch. 36, although such robbery would not, if committed on land, be punished with death. United States v. Palmer et al., 3 Wheat. 610; 5 Cond. Rep. 352.

372. On an indictment for murder founded on the eighth section of the act of congress of April 30th, 1790, ch. 36, the death as well as the mortal stroke must happen on the high seas. The federal courts have no cognizance of the case, where the mortal stroke was given on the high seas and the death took place on shore. United States v. M'Gill, 4 Dall. 526.

373. Notwithstanding the restrictive clause contained in the eleventh section of the judiciary act of September 24th, 1789, ch. 20, the circuit court has jurisdiction of a suit in equity, brought by a judgment creditor against his debtor and others, they being citizens of different states, to set aside conveyances made in fraud of creditors; although the ground of the judgment was a negotiable chose in action, on which, before judgment, a suit could not have been maintained in such court. Bean v. Smith et al., 2 Mason, 252.

374. Where a judgment has been rendered in a state court in a suit between citizens of different states, and the judgment has been since assigned to a citizen of the same state with the original plaintiff, the circuit court has jurisdiction of a suit in equity brought by the assignee; although the ground of the original suit on which judgment was rendered, was a negotiable chose in action, of which the circuit court could not have held jurisdiction under the restrictive clause contained in the eleventh section of the judiciary act of September 24th, 1789, ch. 20. Dexter v. Smith et al., 2 Mason, 303.

375. The circuit court of the United States has jurisdiction in a case between citizens of different states, to sustain a petition for partition, according to the statutes of the state for partition of lands among tenants in common. Ex parte Biddle et al., 2 Mason, 472.

376. Parties entitled to sue in the courts of the United States, are, in general, entitled to pursue in such courts all the remedies for the vindication of their rights, which the local laws of the state authorize to be pursued in its own

courts. Ibid.

377. The circuit courts of the United States are not inferior courts in the technical sense of the books; but are so only as subordinate to the supreme court. But their jurisdiction is special and limited. Livingston et al. v. Van Ingen at al., 1 Paine, 45.

378. If jurisdiction of "cases, arising under laws of the United States," be not conferred on the circuit courts, by an act of congress, they cannot take cognizance of them. And where congress has given an action at law, in the circuit court, in certain cases, they do not thereby acquire jurisdiction so as to entertain, in those