, 1872-01-22

OF the Territory mas aDOuSueO all 0lS-
tinctions between law and equity and
adopted but one form of action to estao-
lish and enforce private rights, which is
called civil action. Statutes Of 1853,
p. SO, sec. 2; also Statutes of 1868, p. 8,
sec. 2.
If the Legislature had the power to do
what it has attempted TO do, the pro-
ceeding in the District Court, so far as
the mode Of action and form of trial are
concerned. were regular enough and
valid. But we are clearly of the opinion
that the Legislature possessed no right
full power to destroy the distinction be-
tween law and equity.
The Organic Act is to all intents and
purposes the Constitution of this Terri
tory. The Legislature cannot violate
its provisions nor abridge its grants of
power to the Courts established by it.
The sec. of the Organic Act provides
"That the legislative power of the Ter
ritory shall extend to all rightful sub
jects of legislation not inconsistent with
the laws and Constitution of the United
States" And again: Any law or laws
inconsistent with this act shall be utter
ly null and void" Again, sec. pro-
vides, after enumerating the Courts in
which the Federal power of the Terrific
ry is vested: "That the Supreme and
District Courts, respectively, shall pos
sess CHANcERY as well as common law
Jurisdiction. "Writs of Error, Bills
of Exceptions and Appeals" are allowed
from the District to the Supreme Court
of the Territory.
Further, it is provided: "The Su-
preme and District Courts shall have and
exercise, in all cases under the Constitu-
ton and laws of the United States, the
same jurisdiction as is vested in the Cir
cult and District Courts of the United
States. sec. Organic Act.
Now here is an express grant of Chan
cery jurisdiction to the Supreme and
District Courts of this Territory. The
language of the grantimplies something
in addition to, and differing from, COM
mon law jurisdiction-"sh shall have
Chancery as ,oeN as common law juris-
diction." The grant is general and un-
restricted and must be considered to
mean not only jurisdiction over the sub
ject matters cognisable in courts of equi-
ty, but the mode of procedure known to
such courts as contradistinguished from
courts of common law. Courts of COM
mon law have their mode of procedure;
courts of equity theirs. These modes
of procedure are peculiar to each and are
respectively embraced in the terms COM
mon law jurisdiction, chancery juris-
diction, and admiralty jurisdiction.
In the 2 sec. of the 3 Article of the
national Constitution, the language is:
"The Judicial power shall extend to all
cases in law or equity" &c. by the
term as thus used, is meant not merely
suits, which the common law recognized
among its old and settled proceedings,
but suits in which legal rights were to
be ascertained and determined, in con-
tradistinction to those where equities
alone were cognizable and equitable
remedies were administered. The term
law as here used means the same system
as is designated by the words common
law" in the seventh amendment to the
Constitution. 8 Pet. 433; 16 Pet. 451;
l vol. Abbott's Digest Practice U. S.
Courts, p. 1876.
The terms .'law and equity" in pro-
prtG rigore, carry with them the mode
Of procedure in EACH"
No. only were the terms "chancery
as well as common law jurisdiction"
used in the organic Act, but "writs of
error" and appeals" are named also.
A writ of error is proceeding known
only to the common law, while an ap-
peal is known alone to courts of chance
ry and admiralty,
That the terms claw and equity"
quoted above from the Constitution en-
brace all that we claim for them, is
manifest from the laws of Congress. the
decisions, rules and uniform practice of
the Courts of the United States.
1st, The Laws of Congress.
The temporary Act of the 29th of
September, 1889, provides: ''That the
forms and mode of procedure in Courts
of Equity and of Admiralty. and of mar
itime jurisdiction shall be according to
the course of the civil law" l Stat. at
Large, SO.
The 34th sec. of the Judiciary Act
makes the laws of the several States,
except where the Constitution. Treaties
or Statutes of the United States shall
otherwise require or provide--as rules
of decision in trials at common lao in
the Courts of the United States in cases
where they apply. l Stat. at Large, 90.
The Process Act of May 8, 1892, pro-
vides "that suits in equity and those of
admiralty and maritime jurisdiction
shall be according to the principles,
rules and usages of courts of equity and
to courts of admiralty respectively, as
oo,,t~o od;st;nou;ahod from courts of com-