it is not res judicata till the final sentence of the appellate court.-Yeaton v. United States, 5 Cranch, 108.

The appellate power of the supreme court extends to remove an admiralty or maritime cause from the circuit court, brought there by appeal from the district court; differing in this from a writ of error.-United States v. Goodwin, 7 Cranch, 108. But like a judgment on which a writ of error lies, the decree, in order to sustain an appeal, must be final.— Young v. Grundy, 6 Cranch, 51. Gibbons v. Ogden, 6 Wheaton, 448. Ray v. Law, 3 Cranch, 179. United States v. Schooner Peggy, 1 Cranch, 103. Yeaton v. United States, 5 Cranch, 280. Schooner Rachel v. United States, 6 Cranch, 329.

Where a mandate is issued by the supreme court, revising the decree of an inferior court, and that court does not correctly execute the mandate, an appeal lies.-Browder v. McArthur, 7 Wheaton, 58. Martin v. Hunter's Lessee, 1 Wheaton, 354. Boone v. Chiles, 10 Peters' S. C. Rep., 208.

A decree of a circuit court perpetuating an injunction, in a case on which some matters of account were left open for further consideration, is not a final decree, and an appeal will not lie on such a case.-Brown v. Swann. 8 Peters' S. C. Rep., 1.

No person but those appearing to be parties to the record, can be permitted to be heard on an appeal or a writ of error.-Harrison v. Mixon, 9 Peters' S. C. Rep., 483.

17. In what cases may the supreme court exercise jurisdiction by the writ of habeas corpus ?

The 14th section of the act of 24th Sept., 1789, provides that the courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. (This limitation means those general principles and those general usages which are to be found, not in the legislative acts of any particular state, but in that generally recognized and long established law, which forms the substratum of the laws of every state.-Marshall C. J., in United States v. Burr, App., 2d part, 185.) And either of the judges of the district court shall have power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment, provided that writs of habeas corpus shall in no case extend to prisoners in jail, unless where they are in custody under color of authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.

In the case of Bollman & Swartout it was made a question whether the issuing a writ of habeas corpus to the circuit court of the District of Columbia, to inquire into the validity of the commitment, was the exercise of original or appellate jurisdiction; and it was decided the jurisdiction exercised in such cases is appellate. It is the revision of a decision of an inferior court, by which a citizen has been committed to jail.—Ex parte Hamilton, 3 Dallas, 17. Ex parte Kearney, 7 Wheaton, 41. Ex

parte Watkins, 7 Peters' S. C. Rep., 572. Ex parte Milburn, 9 Ibid., 710 It does not lie in favor of persons committed for treason or felony plainly expressed in the warrant, convicted of a contempt, or of a crime by a court of competent jurisdiction, or persons in execution, nor will the court upon the writ look beyond the judgment, and re-examine the charge on which it was rendered.-9 Wheaton, 39. 3 Peters' S. C. Rep., 202.

The supreme court has power to issue not only this writ of habeas corpus ad subjiciendum, to inquire into the cause of commitment, but also the habeas corpus ad prosequendum, testificandum et deliberandum.—3 Cranch, 448.

On habeas corpus for a prisoner a certiorari may issue from the supreme court to the clerk of the circuit court, to certify the record, by which the cause of commitment may be examined, and its legality investigated. Ex parte Burford, 3 Cranch, 448.

18. What is the rule as to the authority of the supreme court to issue the writ of mandamus?

By the 13th section of the judiciary act of 1789, it is provided that the supreme court shall have power to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office under the authority of the United States.

The issuing of a mandamus to courts is the exercise of an appellate jurisdiction, and therefore constitutionally vested by this act in the supreme court: but a mandamus directed to a public officer, belongs to original jurisdiction, and by the constitution, the exercise of original jurisdiction by the supreme court is restricted to certain specified cases, which do not comprehend mandamus.—Marbury v. Madison, 1 Cranch, 175. United States v. Lawrence, 3 Dall., 42. Livingston v. Dorgenois, 7 Cranch, 577. Ex parte Hayburn, 2 Dall., 409.

It is doubtful whether the supreme court can interpose, by mandamus to the circuit or district courts, to regulate them in respect to the conduct of their officers, as for instance, to restore an attorney suspended by their authority.--Ex parte Burr, 9 Wheaton, 529.

In a bill praying for an injunction to a judgment in an ejectment, and for a re-conveyance of premises, all the complainants were citizens of Ohio, and so were the defendants. The judgment was obtained in the circuit court, by Graham, a citizen of Virginia, and the defendant, Dunn, held the land recovered, under the will of G., in trust.

On this state of facts the question was raised, whether the supreme court had jurisdiction of the case.

Per Cur. No doubt is entertained by the court, that jurisdiction of the case may be sustained, so far as to stay execution on the judgment at law against Dunn.

Of the action at law, the circuit court had jurisdiction, and no change of residence or condition of the parties can take away a jurisdiction which has once attached.-Dunn et al. v. Clarke et al., 8 Peters' S. C. Rep., 2.

19. What is the rule as to the criminal jurisdiction of the supreme court?

That it has such criminal jurisdiction as is affirmatively given, and none other.-Marbury v. Madison, 1 Cranch, 137. United States v. Or. tega, 11 Wheaton, 467.

20. In what cases may the supreme court issue a certiorari?

It issues on an allegation of diminution.-Ex parte Burford, 3 Cranch, 448. Or where that will not answer, the court will direct a special certiorari to be framed to meet the case.-Barton v. Petit & Bayard, 7 Cranch, 288. The supreme court cannot remove a cause from the circuit court by certiorari on the ground that the circuit court has no jurisdiction of the case, but that the jurisdiction over it belonged to the supreme court. Nor does a certiorari lie in such case to change the venue and grant an impartial trial.—Fowler v. Lindsey, 3 Dall., 411. Serg, on Const. Law, 76.

JURISDICTION OF THE CIRCUIT COURTS.

The present organization of the circuit courts was established by the act of April 29, 1822. New circuits have been formed since the passage of that act, but upon the same principle then adopted.-2 Story's L. U. S., 855.

1. In what cases have the circuit courts original jurisdiction?

It is enacted by the 11th section of the judiciary act of Sept. 24, 1789, that the circuit courts shall have original cognizance concurrent with the courts of the several states, of all suits of a civil nature at common law, or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of the state where the suit is brought and a citizen of another state. But no person shall be arrested in one district for trial in another, in any civil action, before a circuit or district court, and no civil suit before either of the said courts, against an inhabitant of the United States, by any original process, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ. Nor shall any district or circuit court have cognizance of any suit to recover the contents of any promissory note, or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents, if no assignment had been made except in cases of foreign bills of exchange.

2. What is provided as to a jury trial?

Sec. 12 provides that all issues in fact in the circuit courts shall, in all suits, except those of admiralty and maritime jurisdiction, be by jury

3. In what sense only is the circuit court an inferior court?

In the sense of the constitution only; it is not so in the language of the common law; nor are its proceedings subject to those narrow rules which the courts of Westminster apply to special courts, or inferior courts held by charter. It is a court of original and durable jurisdiction; analogous to the court of King's Bench in England, and entitled to as liberal intendments and presumptions in its favor as any supreme court.— Turner v. Bank of North America, 4 Dall., 11. United States v. The Insurgents, 2 Dall., 343. Kemp's Lessee v. Kennedy, 5 Cranch, 185.

Still, however, it is a court of limited jurisdiction, and has cognizance not of cases generally, but only of a few specially circumstanced, amounting only to a small proportion of the cases which an unlimited jurisdiction would embrace.-Turner v. The Bank of North America, 4 Dall., 11.

4. What is the presumption in regard to its jurisdiction?

The fair presumption is, that a cause is without its jurisdiction, till the contrary appears. So that facts and circumstances that give it jurisdiction must be set forth on the record; and if the fact be denied on which the plaintiff grounds his right to sue in this court, he must prove it. Maxfield's Lessee v. Levy, 4 Dall., 330. Gassies v. Ballon, 6 Peters' S. C. Rep., 761. Hodgson & Thompson v. Bowerbank et al., 5 Cranch, 303. Strawbridge v. Curtiss, 1 Condens. Rep., 528. Bingman v. Cabot, 1 Ibid., 170.

The decisions of the supreme court require that the averment of jurisdiction shall be positive, that the declaration shall state expressly the fact on which jurisdiction depends.-Brown v. Keene, 8 Peters' S. Č. Rep., 112. New Orleans v. De Armas et al., 9 Peters' S. C. Rep., 224.

5. What is the rule as to the jurisdiction of the circuit court in cases arising under the laws of the United States?

That unless jurisdiction has been conferred by act of Congress, the circuit court cannot take cognizance of them.-Bank of United States v. Deveaux, 5 Cranch, 85. Hodgson v. Bowerbank, 5 Ibid, 303. McIntire v. Wood, 7 Ibid, 504. 9 Wheat, 104. Livingston v. Van Inghen, 4 Hall's Law Jour., 60.

But though the courts of the United States are all of a limited jurisdiction, and their proceedings are erroneous, if the jurisdiction be not shown upon them, and may in such case be reversed, yet they are not absolute nullities, which may be totally disregarded.-McCormack v. Sullivan, 10 Wheaton. Jackson v. Twentymen, 2 Peters' S. C. Rep., 136. Evans qui tam v. Bollan, 4 Dall., 342. This was an action to recover the penalty of 2000 dollars given by the act of March 22d, 1794, for fitting out a vessel in the slave trade, without declaring in what court the suit should be brought; and it was held that the circuit court had no jurisdiction.

6. What is necessary to vest a jurisdiction in the circuit court, in suits between citizens of the United States?

It is necessary that one of the parties should be a citizen of the state

in which the suit is brought, for the circuit court has no jurisdiction where neither of the parties is a citizen of the state in which the suit is brought.Shute v. Davis, 1 Peters' S. C. Rep., 434. White v. Fenner, Mason, 520. Where a mortgagor and mortgagee are citizens of different states, an ejectment or a bill of foreclosure will lie in the circuit court.-McDonald v. Smalley et al., 1 Peters' S. C. Rep., 624.

7. How is this rule applied to corporations aggregate ?

In the case of the Bank of the United States v. Deveaux, the supreme court established the rule, that the jurisdiction of the court being limited, as respects the character of the parties, to "controversies between citizens of different states," both parties must be citizens to come within the description.

That invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen; and consequently can not sue or be sued in the courts of the United States, unless the right of the members in this respect can be exercised in their corporate name. If the corporation be considered as a mere faculty, and not as a company of individuals, who in transacting their joint concerns may use a legal name, they must be excluded from the courts of the Union. The corporate name cannot indeed be either an alien or a citizen, but the persons whom it represents may be one or the other; and the controversy is, in fact and in law, between those persons suing in their corporate character, by their corporate name, for a corporate right, and the individual against whom the suit is instituted. Substantially and essentially, the parties. in such a case, where the members of a corporation are aliens, or citizens of different states from the opposite party, come within the spirit and terms of the constitution, come within the spirit and terms of the jurisdiction conferred by the constitution on the national tribunals. Such has been the universal understanding upon this subject.

The court will look beyond the mere corporate character, to the individuals of whom it is composed; and if they are citizens of a different state from the party sued, they are competent to sue in the courts of the United States, but all the corporators must be citizens of a different state from the party sued; the same rule applies to a corporation aggregate when standing in the attitude of defendants.-Strawbridge et al. v. Curtiss et al., 3 Cranch, 367. Commercial and R. R. Bank of Vicksburg v. Slowcomb et al., 14 Peters' S. C. Rep., 60. Irvine, for use of Lumberman's Bank of Warren v. Lowrey, 14 Peters' S. C. Rep., 293.

This is according to the English doctrine of a corporation aggregate. -Mayor of London v. Wood, 12 Mod. Rep, cited in Hope Insurance Com. v. Boardman, 5 Cranch, 57. Breithaupt v. Bank of Georgia, 1 Peters' S. C. Rep., 238. Corporation of New Orleans v. Winter, 1 Wheaton, 91. Bank of Augusta v. Earl, 13 Peters' S. C. Rep., 519. 1 Kent's Com., 224

8. What is the rule as to nominal parties?

In the case of Georgia v. Juan Madrazo, the supreme court said: it may be laid down as a rule, which admits of no exception, that in all cases