The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1872-04-06


Been sold. and TO collect which baisnce ger
eral e1ccution Was ordered. Justice NelsO
rendering the opinion) the supreme sCoul
say ~ ,r,....-..... '' '"'
1T was held by this court IN Noonann W
Lee q Black, 40 soil in m appeal from
decree from the foreclosure of mostg g
in chancesyiby ne district court of Wsscou
SIN with circuit court pOwcSs, in which ex
ccutiOp WAS directed for the balance of th
debt, that this part Of the descce Sas lerrone
Gus, inasmuch a. the equity courts of tn
Unaet N3tstes under. the Constitution, u
governed by the practice Of the court
chanccry in England. modified by acts o
Congress and the rules Of the Suprem
Court AID asnO execution could issue. &C
cording To- The practice in the English chan
Gerry, for this balance, and no rule had beer
adopted in this court authorizing it, this par
Of the decree was reversed. ~ IA -
1.-THE decree in the present case was rem
dcred IN Territorial court, and il has beer
c"ntcndcd that this court is not = court un
der the Constitution. nor organized uude
The judiciary act Of 1859, but by the Legis
lature OF the Territory, under the organic
law, and whose jurisdiction 10 regulated by
that law. and therefore that the decision in
the case Of Noonan vs.. Lee does not apply
Il Peters. G4G) -" - .'..'
"Of this opinion arc Messrs. Justices
Swny1e, Field. and myself. but-s majority
of the court are of opinion that the case L
governed by the previous one This part Of
ne decree is therefore reversed, and the res
iduc affirmed"
II viii readily be seen that this case goes
IN psinciplet0 tho extent of holding that the
district courts in the several Territories are
United States courts in all cases, and that in
their exercise Of cIancery Jurisdiction the
same rules and practice are applicable there.
in ns prevail in The high court. of chanccry
In England, Of US they .mayibe inbiflfed
by acts Of Congress or the rules of the Su.
prcmc Court" thus destroying las the leg
is'HisnOt CongrIss now stsnds) the entire
system OF practice built up with SO much
care and expense in the nine Territories of
the Union. ..'' ''.
I he case Of Danphy o. Kleinsmith. III Wal.
lace. page 6lO.) in which it is held that un.
der the language Of the organic acls Of the
several Territories comforting common law
ands chancery jurisdiction, ON the district
counstihsrein. 1t was not competent for
The Legislative Assemblies thereof to es-
'ablis'l II system OF chancery practice differ
cnt from that. prevailing, in the district
courts Of the United States -' ~
=. These, two DECISIONS were cOncurred in
ny tarc majority of That court, and in
he recent case decided from Utah, in which
The same general question of the nature of
hesc territorial courts Was raised, there
vas an equal division of, the, Judges. / re.
Ter to this fact merely for the purpose If
showing the conflict OF legal and judicial
opinion upon this subject rs the law now
stands. and the difficulties that surround it.
50 strongly. indeed, did the Supreme Court
cem to leprecate the evil consequences
lowing from the decision of Orchids %. |
Hughes, in the confusion of the rights Of
property and the chaos of judicial Opinion
which 1t was sure to cngender that il chang. |
ID It's rules ut the same term that the tlcci.
ion WAS rendered, by providing in rule |
THAT in suits in equity for the forecio.
urc OF mortgages in the circuit courts of |
he United States or in any court of the
Territories haying jurisdiction Of the same.
decree may he rendered for any balance
hat may he found due to the complainant
yer and above the proceeds of the sale or
ales, and execution may issue for the col.
,ctiOn Of the same. as is provided in the
ighth rule Of this court regulating the
guilty practice where the decree is solely
he payment Of money" ' N
In u thoroughly organized industrial com.
'unity there is nothing SO well calculated
produce financial paralysis and arouse
he evi! passions Of men as uncertainty in
No law. The wiscst and parest Of judicial
ecisions totally fail To answer the purpose
Or which courts are created, If there is not
least reasonable certainty IN the law
riOr to their rendition. r RI r..-T
In the vast majority of cases arizing for
'dical determination the questions at
sue are those Of fact and not Of law and
hen to tho difficulties that surround uues.
ons Of fact there Is superadded an a5,o.
tie uncertainty in the law, from the filing
the complaint to the rendition of iudc. 3,
ent. the temples of justice arc practically
osed, and society resolved into its original
cments. This is to day, in great measure. |,
&C ticaliy the condition of things in the
ne Territories which have previously {
'scribed: The systems of practice. blend.
together law and equity, substantially /
odeled upon the New York code. and ;
lperatiyely demanded in the Territories,
hose changing populations require that {
ere shall not only be certainty, but cxpe
'!on IN the settlement of lega! controver.
-. have ~ these decisions been swept
'ay and no other system provided in their q
ace. - 6
A""cVc' Wuluk Tue supreme court may U
10 amend its rules from time to time to a
'ct the exigemcies' Of new hardships pre.
nting themselves upon Its records, 1t can. !
I. IN the nature Ut things. afford the o
ief demanded by the business interests of n
ese two craving communities. exercising e
local autonomy through their several !,
gislatures. No lawyer in the Territories i
" Gnows how to institute \ suit, no Judge q
" 10 decide it. From al of the Terrific. Fl
the Delegates on this floor are in daily a,
eipt Of communications from bench and =
praying for the speedy passage Of this "
]. II has been urged as an objection to OK
passage that it will impose large in. II
'ase OF labor upon the Supreme Court
ose Calendar IL already ioverburdened.
nd. however, by sctual examination,
. during the last ten years that court
passed upon only forty two cases from i.
the Territories, or less than one case "
annum for each. and Of this number pl
'babIy more than ono half were dismiss. p,
upon simple motion without INQUIRY n,
, their merits. Z 1t is therefore manifest =.
this objection is not well taken. ~
have thus far shown the supreme ne. tc
stty for the passage Of this bit with ref. II
nee To the Territories It. 10, however. h,
OF importance 10 the Government itself
n financial point Ut view. II Is CONGO. Oe
in Orchids ~. Hughes that the practice 1Vl
he district aud supreme courts IN the IN,
ritor1es may be n.'ditied BY act of Con. In;
~ .Bnt IN case Congress !. shall fail 10
ana the dectaion that these courts are to