Columbia, and, in some cases where a constitutional question is involved, from the highest court of a State, appeals lie from the circuit and district courts directly to the supreme court in the following cases: (1) Where the jurisdiction of the court is in issue; (2) from the final decree in prize cases; (3) in cases of conviction of infamous crimes; (4) where the construction of the constitution of the United States is involved; and (5) where the constitutionality of any federal law, or the validity or construction of any treaty, is in question. Appeals may be taken from the circuit courts of appeal to the supreme court in all cases where the matter in controversy is more than one thousand dollars, except in admiralty, patent, revenue, and criminal cases, and those in which jurisdiction depends entirely on the citizenship of the parties.20

The Circuit Courts of Appeals.-These courts were established by the Evarts Act of 1891, already referred to. There are nine of them, consisting of three judges each, who may be any three of the following: The supreme court judge assigned to the particular circuit, the circuit judges for that circuit, and the district judges whose districts are therein. It has appellate jurisdiction from the circuit and district courts, and in such cases coming from the territorial courts as may be assigned to the particular circuit.21

The Circuit and District Courts.- The United States is divided into nine circuits, to each of which are assigned two circuit judges. The circuit court may be held by the supreme court justice assigned to the particular circuit, either of the circuit judges, the district judge of the district in which it is held, or by any two of them together. Each circuit is divided into districts. Some States constitute a single district, while others contain two or more, each district having assigned to it a district judge. The circuit and district courts have divided between them the greater part of the general original jurisdiction vested in the judicial department.

22

The Court of Claims.- This court was established in 1855 to hear and determine claims of individuals against the federal government. It consists of five judges.23

The Court of Private Land Claims.— This court was established in 1891 to settle disputes concerning the title to certain lands in the western States claimed under Spanish and Mexican grants.

20. Smith Elem. L. 310; 11 Cyc. 912 et seq.

21. Smith Elem. L. 311; 11 Cyc. 941 et seq.

22. Smith Elem. L. 311; 11 Cyc. 947, 951.

23. Smith Elem. L. 311; 11 Cyc. 966 et seq.

By the terms of the act creating it, its existence was limited to December 31, 1895.24

The United States Senate.- As a court, the senate has jurisdiction to try impeachment cases only.25

The Territorial Courts and the Courts of the District of Columbia. The federal government, having power to govern the District of Columbia and territories of the United States, has provided special judicial systems for them.26

§ 254. Same-State Courts. The systems of courts in the various States differ widely from each other, but have some general features in common. There are generally a court of final appeal, and in some States courts of intermediate appeal, courts of general original jurisdiction, courts of inferior original jurisdiction, and court of special probate jurisdiction. In most of the States the court of final appeal or of last resort is called the "supreme court" of the State, although in a number of States it is known as the court of appeals." Provision is sometimes made, as in New York, Illinois, Indiana, Missouri, California, and some of the other States, for a court of intermediate appeal. The courts of general original jurisdiction are usually called "circuit courts," or "district courts," or "courts of common pleas." The judges of the inferior courts are known as "justices of the peace," "trial justices," or "magistrates." The court of special probate jurisdiction is usually styled the "probate court," but in Pennsylvania it is called the "orphans' court," and in New York the "surrogate's court."

" 27

24. Smith Elem. L. 312. 25. Smith Elem. L. 312.

26. See 11 Cyc. 954 et seq.; 961 et seq.

27. Smith Elem. L. 312; 11 Cyc. 765 et seq.

§ 255. Procedure,in General. The term "procedure" is used to indicate the various steps or processes in the adjudication of controversies in courts. The most common forms of procedure in Vogue at present in this country are: (1) Common-law procedure; (2) equity procedure; (3) code procedure; and (4) criminal procedure.

Procedure is the method of applying the remedies of the law. There are plain reasons why various forms of procedure arose. Different methods would naturally be employed in the apprehension and punishment of a criminal from those in use in determining disputes between subject and subject. Furthermore, the court of chancery, influenced as it was by the traditions of the civil law, developed a system peculiar to itself, adapted to the application of its special remedies. And upon the introduction of the codes another system was established, which, although following in the main the equity practice, yet has borrowed freely from the other systems.1

§ 256. Essentials of Procedure. Whatever may be the particular form of procedure, the following essential steps appear: (1) An application to the courts; (2) the original process; (3) appearance of the opposite party; (4) pleadings; (5) a trial; (6) a decision; and (7) an enforcement of the decision. Courts do not take the initiative in a case. Until appealed to, they will not attempt to decide a controversy. Consequently, there must, in all forms of procedure, be some method of applying to the court for the redress of an alleged wrong. But, in order that justice may be done, it is also necessary that the party against whom relief is sought shall be notified, and allowed to appear and defend himself, if he so desires. This is done by the issuing and serving upon him. of a notice that suit has been commenced against him. This notice is called a "writ." It is a form of what is usually known as "process." Both parties being in court, the next step is to ascertain the nature of the dispute. This is done by means of the pleadings, which are the formal statements of the cause of com

1. Smith Elem. L. 313.

plaint, on the one hand, and the ground of defense, on the other. The parties having made their statements or pleadings, a trial is necessary to determine the rights of the parties. Each party produces his witnesses, and the judge or the jury determine the facts from their testimony. The next step is to determine the appropriate remedy, and to render a decision involving the conclusions arrived at. It then only remains necessary to enforce the decision by appropriate means.2 This being the general plan of the various systems of procedure, the present chapter will be devoted to a short explanation of some of the peculiarities of the different systems. § 257. Common-Law Procedure-Forms of Action. - Forms of Action. A proceeding in a court of common law is called an action." Actions are of three general classes: Real actions, mixed actions, and personal actions. The old forms of real actions corresponded with the following writs: (1) The writ of right; (2) the writ of entry; (3) the writ of formedon; (4) the writ of dower; (5) the writ of right of dower; and (6) the writ of quare impedit. The most common mixed action is the action of ejectment. Personal actions are either: (1) Actions ex contractu; or actions ex delicto. The principal actions ex contractu are those of: (a) Assumpsit; (b) debt; and (c) covenant. The principal actions ex delicto are those of: (a) Trespass; (b) trespass on the case; (c) trover; and (d) replevin. The action of detinue is sometimes classed as an action ex contractu, and sometimes as an action ex delicto.3

It has already been noticed, as one of the reasons for the development of the court of chancery in England, that relief in the common-law courts could not be had unless the suitor's claim was of such a nature that the writs in common use would cover it. In other words, it must fall within one of the actions which were allowed. While the scope of these actions is much wider at present than it was at that time, by reason of the introduction of new forms of action, yet the general principle still holds true, in the common-law practice, that a case must be in the form of one of the actions above mentioned, or relief cannot be granted." A real action is one whose object is the specific recovery of real property. A personal action is one whose object is the specific recovery of personal property, or the recovery of damages for an injury. A mixed action is one in which both damages and the specific recovery of real property are sought.

The principal real actions formerly in use were those corresponding to the following writs: (1) The writ of right, which issued when the plaintiff sought the specific recovery of corporeal

2. Smith Elem. L. 314.

3. Smith Elem. L. 315, 316; Shipman Com. L. Pl. 2 et seq.

4. See supra, § 35.

5. Smith Elem. L. 317.

hereditaments, basing his claim upon a title to an estate in fee simple therein. (2) The writ of entry, under which the plaintiff, having been wrongfully dispossessed of lands, could recover them. (3) The writ of formedon, which was used when the plaintiff claimed the right to real property as tenant in tail, or as remainder-man or reversioner after the termination of an estate tail. The three foregoing forms of action have been abolished in England, and in most of the United States. (4) The writ of dower, which issued in favor of a widow who claimed the specific recovery of her dower, no part of it having been assigned to her. (5) The writ of right of dower, under which the widow claimed the residue of her dower, part of it having already been assigned. (6) The writ of quare impedit, under which the plaintiff claimed that his right to a benefice was obstructed, and sought its recovery. Of the three last-mentioned writs, the writ of dower and the writ of right of dower are still used, although in most States they have given way to the mixed action of ejectment or some other remedy." The writ of quare impedit is not in use in this country.

The action of ejectment is the leading mixed action, and into it have been merged, in most jurisdictions, all of the old real actions. It is an action for the specific recovery of land, and for damages for its detention.8

Actions ex contractu are those based upon contract, express or implied. Actions ex delicto are those based upon delict or tort. An action of assumpsit is one brought for the recovery of damages for the breach of a simple or parol contract. An action of debt is one brought for the recovery of a liquidated or certain sum of money.10 An action of covenant is one brought to recover damages for the breach of a covenant or contract under seal.11 An action of trespass is one brought for the recovery of damages for a direct and forcible injury to the plaintiff's person, or corporeal property.12 An action of trespass on the case lies to recover damages for an injury to person or property which is either not forcible or not direct.13 An action of trover is one brought to recover damages for the wrongful conversion of personal property. An action of replevin is one for the specific recovery of personal property, and for damages for its detention."

15

12. Smith Elem. L. 317; "Trespass,' Cyc. See supra, § 118. 13. Smith Elem. L. 317; 6 Cyc. 681. This is the usual form of action for negligence, nuisance, etc. 14. Smith Elem. L. 317; "Trover and Conversion," Cyc. -. See supra, §§ 31, 119.

15. Smith Elem. L. 317; "Re

plevin,"