be necessary for the court to determine the question of title in its decision.1

If a plaintiff brings an action, knowing that his demand. necessarily involves a question of title, his action should be dismissed at his cost and not certified up.'

f. In actions in rem., by losing the custody of the property or failing to give notice. As the jurisdiction of the court in actions in rem. is acquired by a levy upon the property, or some equivalent act by which the property is taken into its custody, so the court loses its jurisdiction by surrendering, or otherwise losing the custody of the property.3

It has been shown elsewhere that in actions in rem. it is necessary, in order to render the jurisdiction of the court effectual, that notice be given to the parties interested, or to the public generally, as the case may require. If, therefore, the court obtains jurisdiction of the property by seizing and taking it into its custody, but notice is not given within the time required by law, its jurisdiction is lost.5

g. Suspended between terms of court and when judges not present. It has been shown that a court can only act as such when regularly convened at the time and in the place provided by law. It follows, necessarily, that during the intervals between terms of court the jurisdiction of the court is suspended, and no judicial act, that can only be done by the court, can be performed by the judge or judges composing the court when not properly assembled as such.7. And if, during the term, the number of judges necessary to make a duly organized court are not present, the functions of the court are suspended until the requisite number appears. But it has been held that the calling of one of the members of the court from the bench to the witness stand, in the case on trial before the court, thus leaving less than the requisite number,

5 Miller v. Babcock, 29 Mich. 526; Waples' Pro. In Rem, sec. 64, p. 88.

Ante, secs. 1, 19.

7

Ante, sec. 19.

does not deprive the court of jurisdiction. And a failure of the court to convene for one day, during the term, although the court has regularly adjourned to that day, does not deprive it of jurisdiction for the term where it meets the following day and proceeds with the business of the court.2 It is otherwise when the court fails to convene at the beginning of the term.3

h. By exhausting its jurisdiction. Cases occur in which a court may, in the proper exercise of its jurisdiction, render one of two alternative judgments. Where this power exists, the rendition of one of the alternative judgments, for example, where one of two penalties may be inflicted for the commission of a crime, exhausts the jurisdiction. of the court, and its power is at an end. It can not subsequently impose the other alternative penalty upon the party accused.*

As a general rule, the jurisdiction of a court, once properly acquired, will not be divested by any act of the parties, or change of facts, or the condition of the parties, or the subject-matter in the particular case. The question of jurisdiction relates to the time the action is brought, except where such jurisdiction is claimed to have been terminated in some mode recognized by law. Therefore, if the residence of the parties is such, at the time the suit is brought, as to give a federal court jurisdiction, such jurisdiction will not be ousted by a subsequent change of residence of any of the parties.

25. PRESUMPTIONS IN FAVOR OF JURISDICTION.-The general rule in respect of presumptions affecting jurisdiction. is that every thing will be presumed to be within the jurisdiction of courts of general and superior jurisdiction,

1

People v. Dohring, 59 N. Y. 374; 17 Am. Rep. 349.

'People v. Sullivan, 115 N. Y. 185; 21 N. E. Rep. 1039.

'Ante, secs. 1, 19.

Lange v. Benedict, 48 How. Pr. 465; Ex parte Lange, 85 U. S. 163. Wells' Jur., sec. 79.

Mollan v. Torrance, 9 Wheat. 537.

and nothing will be presumed to be within the jurisdiction. of courts of inferior or special jurisdiction.'

The effort has been made to distinguish these different classes of courts.2 The means by which courts of special or inferior powers may obtain jurisdiction in a particular case has also received attention.3 It must be borne in mind that there is a very material distinction between a court of inferior jurisdiction and one exercising special jurisdiction. Of course, a court having special jurisdiction. only, is a court of inferior jurisdiction. But a court of general and superior jurisdiction may be invested with special powers, and, so far as it exercises such special jurisdiction, it is a court of inferior powers, and its acts must be tested and proved accordingly.*

Jurisdiction, whether exercised by a court of general or of inferior jurisdiction, may be special in its nature because such jurisdiction must be obtained in a special way, or because it must, after being obtained, be exercised in a special mode. Therefore, the general rule that every thing will be presumed to be within the jurisdiction of a court of general jurisdiction must be limited to such things as fall within the general scope of its powers. And, where exclusive jurisdiction of a subject-matter is given to a class of tribunals, it will not be presumed that a court, not belonging to such class, has jurisdiction over such subject-matter, although the court is one of general juristion. But this can only be so where it affirmatively appears from the record that jurisdiction of the general sub

1 Galpin v. Page, 18 Wall. 350; Freeman on Judg., secs. 124, 517; 12 Am. & Eng. Enc. of Law, 271; Harvey v. Tyler, 2 Wall. 328. Elliott's App. Pro., sec. 715; Ex parte Kearny, 55 Cal. 212; Wells' Jur., sec. 30; Mallett v. Uncle Sam, etc., Min. Co., 1 Nev. 188; 90 Am. Dec. 484; Schad v. Sharp, 95 Mo. 573; 8 S. W. Rep. 549; Coit v. Haven, 30 Conn. 190; 79 Am. Dec. 244; City of St. Louis v. Lanigan, 97 Mo. 175; 10 S. W. Rep. 475. Ante, secs. 7, 20, 22, 23. Ante, sec. 20.

2

3

Galpin v. Page, 18 Wall. 350; Cooper v. Sunderland, 3 Ia. 114; 66 Am. Dec. 52. But see on this point Ante, sec. 20, and Sheldon v. Newton, 3 Ohio St. 494, 499.

5 Ante, secs. 7, 20, 22, 23.

6 Ante, secs. 7, 22, 23; Galpin v. Page, 18 Wall. 350.

Elliott's App. Pro, sec. 715.

ject-matter is not in the court before whom the action is pending, or is exclusively in another court, or class of courts, to which it does not belong. So it is really a case in which it appears from the record that the court has not jurisdiction, and brings the case within the other rule that no presumption can prevail against the record. And this rule applies only to the general subject-matter, and not to the question of jurisdiction in a particular action. A want of jurisdiction in a particular case must be shown by the proper plea or answer.1

"It is a necessary presumption that the court of general jurisdiction can act upon the given case when nothing appears to the contrary; hence has arisen the rule that the party claiming an exemption from its process must set out the reasons by a special plea in abatement, and show that some inferior court of law or equity has the exclusive cognizance of the case, otherwise the superior court must proceed in virtue of its general jurisdiction."2

If a court of general jurisdiction must, in the given case, acquire or exercise jurisdiction, not according to the general course of proceeding in such court, but in a special mode provided by statute, in that particular case, or in the class of cases to which it belongs, the jurisdiction is special in its nature, and the court a court of inferior jurisdiction with respect to that case.

The rule has been laid down in general terms that "when a superior court exercises special statutory powers in accordance with the usual form of common law or chancery proceedings, the usual presumptions as to its jurisdiction are entertained, but when those powers are to be exercised in a special or summary manner, the record must show that the court had jurisdiction, and that it proceeded in the way provided by the statute."3

The distinction is often made to turn upon the question

State of Rhode Island v. State of Massachusetts. 12 Pet. 657, 718; Elliott's App. Pro., sec. 715.

State of Rhode Island v. State of Massachusetts, 12 Pet. 657, 718. 312 Am. & Eng. Enc. of Law, 276; Harvey v. Tyler, 2 Wal. 328; ante,

sec. 22.

whether the court, in the given case, proceeds according to the course of the common law, or in accordance with some mode prescribed by statute.'. But this distinction is calculated to mislead. In a certain sense none of the courts of many of the states in this country proceed according to the course of the common law. The mode of acquiring and exercising jurisdiction is almost always, and entirely, prescribed by statute, and the extent of the jurisdiction of every court is limited, to a certain extent, either by the constitution or statutes of the state, or of the United States. Therefore, every such court acquires and exercises its jurisdiction according to statutory or constitutional provisions and not according to the course of the common law.

1 Ante, secs. 7, 22, 23; Galpin v. Page, 18 Wal. 350; Freeman on Judg., sec. 127.

2 Ante, secs. 7, 20, 22, 23; Harvey v. Tyler, 2 Wal. 328; Hahn v. Kelly, 34 Cal. 391, 409; 94 Am. Dec. 742.

In Harvey v. Tyler, supra, it is said: “The jurisdiction which is now exercised by the common law courts in this country, is, in a very large proportion, dependent upon special statutes conferring it. Many of these statutes create, for the first time, the rights which the court is called upon to enforce, and many of them prescribe with minuteness the mode in which those rights are to be pursued in the courts. Many of the powers thus granted to the court are not only at variance with the common law, but often in derogation of that law. In all cases where the new powers thus conferred, are to be brought into action in the usual form of common law or chancery proceedings, we apprehend there can be little doubt that the same presumptions as to the jurisdiction of the court and the conclusiveness of its action will be made, as in cases falling more strictly within the usual powers of the court. On the other hand, powers may be conferred on the court and duties required of it, to be exercised in a special and often summary manner, in which the order or judgment of the court can only be supported by a record which shows that it had jurisdiction of the case. The line between these two classes of cases may not be very well defined nor easily ascer tained at all times. There is, however, one principle underlying all these various classes of cases, which may be relied on to carry us through them all when we can be sure of its application. It is, that whenever it appears that a court possessing judicial powers has rightfully obtained jurisdiction of a cause, all its subsequent proceedings are valid, however erroneous they may be, until they are reversed on error or set aside by some direct proceedings for that purpose. The only difficulty in applying the rule, is to ascertain the question of jurisdiction."