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But when it is the duty of the party to receive the goods, and he cannot refuse without a violation of some rule of law, as in the case of a common carrier, it would perhaps be considered that he had no right to give such

notice. 196

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2525. A lien may be lost in several ways, the principal of which are the following:

It may be lost or waived by any act of the parties by which it may rendered or become inapplicable. It may be lost by the payment of the debt which is a lien upon the goods,

, and the satisfaction of such debt by the creation of a new one may have that effect; as, where a creditor holds the note of the owner of the goods, and he has a lien in consequence of it, if the parties afterward renew the debt by the creditor's taking a bond, and he gives up the note with an agreement to cancel the old debt and create a new one, the lien on the goods will be lost.197

In general, possession is not only essential to the creation, but also to the continuance of the lien ; it may, therefore, be lost by voluntarily parting with

l the possession of the goods. But to this rule there are some exceptions; for example, when a factor by lawful authority sells the goods of his principal, and parts with the possession under the sale, and such sale is made for the benefit of the factor, or the goods are assigned or delivered to a third person by way of pledge or security to the extent of the factor's lien, it is in effect a continuance of the factor's possession, and the lien is therefore retained.

2526. In general, the right of the holder of the lien is confined to the mere right of retainer. By the express agreement of the parties, the creditor may sell the goods on which he has a lien, but unless there is an express or implied contract, the holder has no right to sell them for the debt due him. In special cases there may be an implied power to sell; as, where the goods are deposited to secure a loan of money which is to be returned on a certain day, or where a factor makes advances or incurs liabilities on account of the consignment. In some cases where the lien would not confer a power to sell, a court of equity would decree a sale.199 Courts of admiralty will decree a sale to satisfy mari

a time liens.200

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196 6 Term, 14. See Wright v. Snell, 5 Barnew. & Ald. 350; Oppenheim v. Russell, 3 Bos. & P. 42; Rushforth v. Hatfield, 7 East, 224.

197 Before, 801. 198 Pothonier v. Dawson, 1 Holt, 333; 3 Chitty, Com. Law, 551; 1 Livermore, Ag. 103. 199 1 Story, Eq. Jur. g 506; 2 Story, Eq. Jur., 1216; Story, Ag. 8 371. 200 Abbott, Shipp. part 3, c. 10,8 2; Story, Ag. § 371.


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2527-2546. Courts in general.

2528. Courts of record and not of record.
2530. Superior and inferior courts.
2534. Courts of civil and criminal jurisdiction.

2536. Territorial jurisdiction of courts. 2537–2546. Division of courts as to their objects.

2538. Courts of common law. 2539-2544. Courts of equity.

2540. Constitution of courts of equity.
2541. Jurisdiction of courts of equity.
2545. Courts of admiralty.

2546. Courts martial.
2547–2640. The courts of the United States.
2548–2571. The central courts.
2549–2552. The senate as a court.

2550. Its organization.

2551. Its jurisdiction.
2553–2571. The supreme court of the United States.
2554–2559. Organization of the supreme court.

2555. Appointment of the judges.
2556. Number requisite to a quorum.
2557. Officers of the court.
2558. Time of holding the court.

2559. Place of holding the court. 2560–2571. Jurisdiction of the supreme court. 2561-2570. The civil jurisdiction.

2562. Original jurisdiction of the supreme court. 2563–2570. The appellate jurisdiction of the supreme court

2564. Writ of error from the circuit courts.
2565. Appeals from the circuit courts.
2566. Writs of error from the state courts.
2567. Division of opinion in the circuit courts.
2568. Bail and habeas corpus.
2569. Writs of prohibition.
2570. Writs of mandamus.

2571. Criminal jurisdiction of the supreme court.
2572-2640. Local courts of the United States.
2573-2611. The circuit courts.
2574-2584. Organization of the circuit courts.

2575. The circuits.
2577. The supreme court of the District of Columbia.
2579. The judges.
2582. The officers of the circuit courts.
2583. Time and place of holding the court.

2584. Removal of causes in certain cases. 2585-2611. Jurisdiction of the circuit courts.

2586–2610. The civil jurisdiction.
2587-2609. Jurisdiction at law,
2588-2600. Original jurisdiction.

2589. Jurisdiction over the subject matter.
2593–2600. Jurisdiction over the parties.

2594. When the United States is a party.
2595. Between citizens of different states.
2596. When an alien is a party.
2597. When an assignee is plaintiff.
2600. Who may be a defendant.
2601. The appellate jurisdiction of circuit courts.
2606. Removal of actions from state courts.
2609. Remedy by mandamus.
2610. Equity jurisdiction of the circuit courts.

2611. Criminal jurisdiction of the circuit courts.
2612–2639. The district courts.

2613. Organization of the district courts.
2618–2639. Jurisdiction of the district courts.
2619-2637. Civil jurisdiction.
2620–2628. Admiralty and maritime causes.
2621-2625. Ordinary jurisdiction in admiralty.

2622. Prize causes.
2623. Cases of salvage.
2624. Torts on the high seas.

2625. Maritime contracts.
2626-2628. Extraordinary jurisdiction in admiralty.

2627. Seizures under impost and navigation laws.
2628. Captures within the limits of the United States.
2629. Seizures on land and forfeitures.
2630. Suits by aliens.
2631. Suits by the United States.
2632. Suits by and against consuls.
2633. Jurisdiction in equity.
2635. Incidental powers of district courts.
2638. Criminal jurisdiction of district courts.
2639. Jurisdiction in bankruptcy.
2640. The territorial courts.
2641. The state courts,

2527. A court is an incorporeal, political being, created for the purpose of administering justice judicially, and 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. According to Lord Coke, a court is a place where justice is judicially administered. This definition has not been adopted,

" because it is conceived that the court is not a place, but the judges and other officers, properly organized, form the court.

In another sense, the judges, the clerk or prothonotary, the attorneys, counsellors, solicitors or proctors, and ministerial officers, are said to constitute the court. And sometimes the judges alone are called the court.

In another place we have considered the organization of the courts under


Coke, Litt. 58, a. ? When treating of the choice of a professional man, a short sketch of the powers and duties of attorney and counsel was given. Before, 2418, 2420.

the constitution and laws of the United States, and of the state courts under the state constitutions. In this place it will be proper to take a view of their various kinds, and of their powers and jurisdictions. When considered as to their powers, they are of record and not of record; when compared to each other, they are supreme, superior, and inferior ; when examined as to their original jurisdiction, they are civil or criminal; when viewed as to their territorial jurisdiction, they are central or local; and when divided as to their objects, they are courts of law, courts of equity, admiralty courts, and courts martial.

2528. By the common law, a court of record is one where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the records of the courts. In the United States the acts and proceedings of such courts are written in books kept for that purpose, or in papers kept on file in the offices of the clerks or prothonotaries. The test of a court of record is whether it has or has not the power to fine and imprison; a court which possesses that power is a court of record, all other courts are not of record. In this country, a court which does not possess common law jurisdiction, and a seal, and a clerk or prothonotary, for the purpose of engrossing and keeping its proceedings, would not be considered a court of record,

The act of congress to establish a uniform rule of naturalization, approved April 14, 1802, enacts that, for the purpose of admitting aliens to become citizens, any court of record in any individual state, having common law jurisdiction, and a seal, and a clerk or prothonotary, shall be considered a district court, within the meaning of that act.

2529. All courts which do not come within the definition of a court of record are courts not of record.

2530. Courts of record are divided into supreme or superior courts, and inferior courts.

2531. A supreme court is one having jurisdiction over all other courts. Such a court possesses in general appellate jurisdiction, either by writ of error or by appeal in other cases. The supreme or superior courts have their jurisdiction by the common law and by the constitution of the United States, or of the state where located. And this common law jurisdiction cannot be taken away without the express negative words of a statute, unless by irresistible implication."

2532. A supreme court, in general, has no original jurisdiction, except what may be given to it by the constitution. Its principal powers are to supervise the acts and proceedings of the inferior tribunals. This is done by writ of error and by appeal.

By writ of error. When, in course of the trial in an inferior court of law, it is alleged that the lower court has committed an error, the party aggrieved



Bacon, Abr. Courts, D, 2. A court of record has been defined by a learned judge to be a judicial tribunal proceeding according to the course of the common law and exercising its functions independently of the person of the magistrate designated generally to hold it. Ex parte Gladhill, 8 Metc. Mass. 171.

Many courts of limited and special jurisdiction not proceeding according to the course of the common law, as probate courts, are not courts of record although they keep a permanent record. Smith v. Rice, 11 Mass. 507.

Courts of justices of the peace are not in general courts of record. Mowry v. Cheesman, 6 Gray, Mass. 515; Wheaton v. Fellows, 23 Wend. N. Y. 375; Ellis v. White, 25 Ala. n. s. 540; Silver Lake Bank v. Harding, 5 Ohio, 545; Snyder v. Wise, 10 Penn. St. 158.

* Commonwealth v. McCloskey, 2 Rawlé, Penn. 369; Buckinhoffen v. Martin, 3 Yeates, Penn. 479; Commonwealth v. White, 8 Pick. Mass. 435; Murfree v. Leiper, 1 Ov. Tenn. 1; Overseers v. Smith, 2 Serg. & R. Penn. 363; Badger v. Towle, 48 Me. 20.


has a right to remove the cause, in civil actions, without the consent of the opposite party, into the supreme court ;' for this purpose he sues out a writ of error from the supreme court, which writ commands the judges of the inferior court to send the record into the supreme court, there to be examined. The object of this writ is to correct an error of law, committed in the course of the proceedings, which is not amendable or cured at common law, or by some statute of amendment, or jeofails.

The supreme court, being thus possessed of the cause, does not try it again upon the merits, and it is immaterial what may be the state of the facts. This proceeding is less a suit between the parties than between the judgment rendered in the court below and the law, for the supreme court does not try the cause between the parties, but judges the judgment. If the court below have obeyed all the requisitions of the law, their judgment, however wrong as to the facts, cannot be impeached, and it will be affirmed; and if they have violated the law, however correct their judgment may be as to the facts, it will be reversed. The reason of this is that the supreme court in cases of error does not try the facts.7

By appeal. An appeal in a civil suit is a proceeding unknown to the common law. It is authorized by statute in a variety of cases, and is regulated entirely by the provisions of the particular act; it cannot be extended beyond the plain and obvious import of the statute granting it.®

In cases of appeal the whole case is examined and tried as if it had not been tried before. But it is an essential criterion of appellate jurisdiction that it revises and corrects the proceedings below, and does not create a new cause.10

2533. All other tribunals than the supreme court are inferior courts." These courts have in general original jurisdiction in cases both at law and in equity. Unlike a supreme or superior court, an inferior tribunal is a court of limited jurisdiction, and it must appear on the face of its proceedings that it has jurisdiction, or its proceedings will be void.12

2534. The courts of civil jurisdiction are those which are authorized by the common law or by the constitution or statute to decide upon all civil actions and disputes between persons in their private capacity, whether such matters relate to the persons of the parties or to their personal or real property.

These courts may act with or without a jury. The inferior courts of common law cannot try anything, unless specially invested with that power by statute, without the aid of a jury, the constitution of the United States having secured that mode of trial. “ In suits at common law where the value in controversy

5 Skipworth v. Hill, 2 Mass. 35; Drowne v. Stimpson, 2 Mass. 441.

6 Wall v. Wall, 2 Harr. & G. Md. 79; Chase v. Davis, 7 Vt. 476; Colley v. Latimer, 5 Serg. & R. Penn. 211. A writ of error in general does not lie to reverse the judgment of a court not of record. The remedy in such cases is by appeal or review. Fitzgerald v. Commonwealth, 5 All. Mass. 509. The writ cannot issue until after final judgment. Robinson v. Morgan, 32 Mo. 428; Beatty v. Hatcher, 13 Ohio, St. 115; Paine v. Chase, 14 Wisc. 653. The writ does not lie to review matters which were within the province of the judicial discretion of the inferior court. Norton v. Merchants’ Co., 28 Ill. 313; Lovell v. Kelly, 48 Me. 263.

* The writ of error has to a considerable extent been supplanted by other modes of reviewing a judgment, and in some states it does not appear to exist at all. Second Bank v. Upman, 14 Wisc. 596.

Street v. Francis, 3 Ohio, 277; Wetherbee v. Johnson, 14 Mass. 420; Murdock, Appellant, 7 Pick. Mass. 321.

See Dane, Abr. Appeal. 10 Marbury v. Madison, 1 Cranch, 137, 175; 3 Wheat. 600. 11 U. S. Const. art. 3, s. 1.

12 Kemp v. Kennedy, 5 Cranch, 172; Pet. C. C. 36 ; Turner v. Bank of America, 4 Dall. 11; Beebe v. Scheidt, 13 Ohio, St. 406; Godfrey v. Godfrey, 17 Ind. 6; Rowan v. Lamb, 4 Greene, Iowa, 468.

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