Bozeman avant courier. [volume] (Bozeman, Mont.) 1872-1882, 1873-04-11
ImPaRTANT DECISION
Defiverered by Judge selyis ri
the March sertss Of the District
Court, ~ ssasiersDsrg, M III

Aex1ver6red by Judge Seryis IN
the March seriss Of the District
4 Court, NJ ssasiersDHrg, n III
III. W.Jer-TGIEs ps. ID. vsSsEHafAS So Il. H.
i WILSON.
This case Is Submitted upon inufion j fu
mike Il Packer Il pariy, Which Ii granted.
Also demurrer TO complaint. for the foIIow-
ing grounds Or causes:
1T, For 4 misjpinder Of causes Of action
81, Joindcr, or blending of law allI ed
atty
81. Wantof sufficient facts statesI
q g, ambiguity O pieas;ings.
Il the laws and Practice Act OF tlis Terri
| tory shall prevail, ho'd that the complaint
Is sufficient, and that i'll fereclosing !: nofts
gage the amount claimed. for which tile
security given is sought to he foreclnsed or
enforced. may be ascertainpd by the court.
and perhaps through the Intervention of Il
jury or refcrcc if demanded. That for any
balaree which may remain llnsatisiicd from
such security, llit amount thereof may be
aoeketed and become lien Oh other real
estate Of The mortgagor. bur that no execll-
tion can issue thereon tlnder the present law
Bat # the Chancerv practice shall prevail.
then no sncl, proceedings can be had rs in
this cesc, and the demurrer should be sus-
tained. 10 determine winch. we must
determine the characterof Territorial eourts,
and also the legality or constitutionaity of
Territorial legislation.
The theory upon which the y,rious gov
have been orgarnizcd has ever been that OF
leaving to tile inhabitants all the powers of |
self-goyerlment, consistent with the SUI
prema " and supervision of National author
ity. and with certain fundamental principles
established bY Congress. Ev,ry American
citizen. when he becomes a resident of a
Territory. carries with him so much OF the
conlmoh law as is applicable to his condition.
and that becomes the law Of the Territory
until madiiied or repealed by. or under some
derived from the United States.
Snch was the doctrine applied to the Eng
lisll colonies on this continent. and the same
has beer applied to I'LL tile Territories of the
United States since
have heretofore Somewhat reflected upon
the question presented by this demurrer;
md since lis able presentation and defense,
have given tile subject what research and
housht / well ould here; and hold that
here is no Supreme Court of the United States
n a Territory; ror is there any District
Court of ths United States in Territory. in
he sense of the Constitution. The Judges.
i is true, are appointed by the President of
lie United States, under ali act of Congress, 4
,ut this docs not make the courts they are
to hold, United States courts :
[his was long. long ago decided, and the
ase is repoeted in 8 lloward's q. ). Reports
These eourts afethe Legislative cJarts OF
he Territory. and are creal ed by virtue of
hat clause of the Constitution, which aif-
hofizes Congress to make all needfnl rules
nj regulations respecting the Territories
ecided in the 1st of Peters Reports, and
as never cen reversed in my Judgement.
The case of Noonan Us. Lee decided in 81 !
;lack.) is not in conflict with the decision in
he 1st Peters. That was a case commenced !,
4 a Territorial coui it is true ; nevertheless,
was the chancery power of the court that
'as invoked in that case, !, and that too,
efore the adoption OF rule 80 OF tile United
tates Supreme Court. originating as it did
'om the holdings in the case Of Orchard vs
[nghes, where no execution could issue for
ny balance found s.ue after exhausting the :.
lortgage security, and for that reason alone :
as the Noonan case reversed. The court,
len, did not decide that the district Courts :
a Territory were United States Courts in !
i cases except where chancery is invoked, !,
le rules in clrancery practice must be
bserved.s'
Neither is the holding in the case Of. Dun st
by Us. Meinschmidt in conflict with this te
lew Tie court in that case did n t hold HI
that it was incompetent for the Il rritorial fo
legislature to establish chancerY practice 2 G.
only held in that regard. that the Terri il,
rial Legislature had no power to pass laws in
contlaventlon of the Constitution OF the la
nited States (and | would inquire what I'll
legislative body has p or which shall deprive 4
e Supreme and District Courtsof a Terri a
ry Of ehancery as well rs common law W
risAiction. In none Of the cases above nj
ferred to is the Legislature prohbi ed from be-
gulating che practice. They simply pro- le
bit the Legislature from taking away and DC
nnlling chancery and common law juris-
ction. This was just what the Organic
ct Of this Territory expressly reserved to-
e United States-and nothing more. 1t did
t prohibit the Territorial Il gis'ature from -
en- prescribing modes of exercising that i,
except it be in cases v here the 9 9
VS. of the United States are sought to be {,
forced under chancery and common law z,
risdiction. ss..9i If. 81
Four distinct jufisdlict ofs are given under b1l
Q Organic Act of the Territory of Montana te
d they ares St
First; Such as shah be limited by law.' al.
hat law? Wliy the law Of the Territory. Il
second and third; 1T shall possess chan ca
IT as well as common laso jurisdicfion.n Sc
Fourth; And each OF said courts (refer- OF
g to the District Gourfsof the Territory II
MI have and exercise the same jurisdiction Of
all eases arising under the Constitution
q laws Of the United States as is vested in
. District and Circuit Courts ef the United sc