defend in the place or division in which an action has been commenced; and when it appears to the satisfaction of the court, or judge thereof, that an action has been commenced in a place or division remote from the residence of the defendant for the purpose of causing unnecessary expense or inconvenience, the place of the trial shall be changed at the cost of the plaintiff, and such costs shall not be recovered from the defendant.

In any criminal prosecution the court shall change the place of trial where it appears to the satisfaction of the court that the defendant will not be prejudiced thereby and that the United States will be put to unnecessary expense in such criminal prosecution if the transfer is not made."4

The judge of each division is required to divide his division into precincts, and is authorized to alter the same and establish new precincts from time to time, as public convenience may require.5

He is also required to appoint commissioners and to remove such commissioners, at pleasure. These commissioners have within their respective precincts the jurisdiction and powers of the commissioners of the District Courts of the United States and of notaries public. They are ex officio justices of the peace, recorders and probate judges. They have also power to grant writs of habeas corpus, returnable before a district judge, for the purpose of inquiring into the cause of restraint of liberty.7

It was held that an order abolishing a precinct, providing that the territory embraced therein should become a part of another precinct, accepting the resignation of the commissioner for the precinct abolished, and directing him to "deliver the record and property pertaining to his office" to the commissioner of the new district, with which the former one was consolidated; constituted the commissioner of the latter precinct the successor

431 St. at L. 325, Comp. St. $ 3565.

5 23 St. at L. 24; 30 St. at L. 545; 31 St. at L. 321, supra, § 66, ¶ 70.

6 Ibid.

7-Act of June 6, 1900, 31 St. at L. 321, § 6. This act contains the Code of Civil Procedure for Alaska. For the Alaska Criminal Code, see

Act of March 3, 1899, 30 St. at L. 1253. For the former statute, see the Organic Act of May 17, 1884. 23 St. at L. 24. It has been held that such commissioners have no ju risdiction of larceny committed in a ship, steamboat or other vessel. Ex parte Kie, 46 Fed. 485. As to probate jurisdiction, see Ex parte Emma, 48 Fed. 211.

in office of the former commissioner of that abolished, and transferred to him all the probate cases pending in the former precinct, with power to proceed in the same.

The practice in Alaska is regulated by a Code of Civil Procedure for Alaska and a Criminal Code.10

The Act providing a civil government for Alaska directed: "That the general laws of the State of Oregon now in force are hereby declared to be the law in said district, so far as the same may be applicable and not in conflict with the provisions of this Act or the laws of the United States.

11

It has been held that the law of Oregon in force on May 17, 1894, determines the construction and proper requisites of an indictment although they are in conflict with the rules of the common law in that respect.12 And that the sections of the Revised Statutes of the United States upon that subject do not apply.13 The inhabitants of Alaska, at least when they are not members of the Indian tribes there, have the right, when charged with crime, to a trial by jury of twelve, before they can be convicted.14 It has been said "that the whole subject matter of jurors in the territories is committed to territorial regulation." 15 Until changed by statute, the court resorts to the laws of Oregon to determine the qualification of grand jurors.16 It seems that statutes of the United States granting defendants the right to separate trials in certain cases 17 regulating the number of peremptory challenges to jurors 18 and the mode of challenging petit jurors 19 do not apply. Neither is application made of the section of the Revised Statutes directing that the defendant in certain cases be furnished with a list of the witnesses to be produced against him on the trial.20 Nor of that permitting the

8 Cheney V. Alaska Treadwell Gold Min. Co., C. C. A., 148 Fed. 808.

931 St. at L. 321.

10 30 St. at L. 253. Act of March 3, 1899; Summers v. U. S., 231 U. S. 92.

11 Act of May 17, 1884, ch. 53, 23 St. at L. 24.

12 Fitzpatrick v. U. S., 178 U. S. 304, 308. See Endleman v. U. S., 86 Fed. 456,

13 Summers v. U. S., 231 U. S. 92. 14 Rassmussen v. U. S., 197 U. S. 516, 25 Sup. Ct. 514, 49 L. ed. 863. 15 Clinton v. Englebrecht, 13 Wallace, 434, 445.

16 Jackson v. U. S., 102 Fed. 473, 477.

17 Cochran v. U. S., C. C. A., 147 Fed. 206, 207.

18 Ibid.

19 Miles v. U. S., 103 U. S. 304. 20 U. S., R. S., § 1033, Ball v.

joinder in one indictment of several charges for connected acts or transactions or for acts or transactions of the same class of crimes.21 A subsequent act of the territory legislature permits such joinder. 22 Nor the former sections forbidding testimony of a party in an action against an executor or an administrator with certain exceptions.23 Where the statutes and decisions of Oregon and Alaska are silent, the common law is in force in this territory 24 so far as it has not been changed by the statutes of the United States.25 "Congress by its legislation intends always special regulations for the Territories." 26

§ 68. Jurisdiction of the Supreme Court of the District of Columbia. The Supreme Court of the District of Columbia has in general the same civil jurisdiction that was vested in the General Court, or the Supreme Court of Chancery, of Maryland, on February 27th, 1801.1 It has also the same civil jurisdiction as the District Courts of the United States,2 with the possible exception of admiralty, and including jurisdiction in bankruptcy, when the bankrupt resides in the district. It has no jurisdiction of suits against persons not inhabitants of the district, except in the same way that nonresidents were proceeded against in the General Court or Supreme Court of Chancery of Maryland on May 3, 1802, and where such jurisdiction is conferred by special statutes. It has jurisdiction of applications for divorce. It has jurisdiction to issue writs of mandamus, prohibition and certiorari which cannot be issued by the District Courts of the United States. It may thus issue the writ of mandamus addressed to administrative officers of the United

8

States within the district. It might be held that it has power to review by certiorari in a proper case a decision of a quasi judicial nature made by an executive officer of the United States at Washington; and to issue writs of prohibition directed to inferior courts and to public boards and officers acting in a quasi judicial capacity within the district, and writs of quo warranto to determine the right to hold an office of the United States within the district.10 The common law, both civil and criminal, prevails in the District of Columbia and there may be a common law offense against the United States committed therein which is not created by any statute.11

The practice in this court is regulated by a code of procedure, enacted by Congress, which recognizes the distinction between common law and equity.12 Before the enatment of that code, the court had power to make rules for its practice at common law and in equity; 13 including a rule that in an action on contract where the plaintiff or his agent files an affidavit setting forth his cause of action and the sum claimed, exclusive of setoff and just grounds of defense, and serves the defendant with copies of the same and of his declaration, he shall be entitled to judgment, unless the defendant filed with his plea in bar a sufficient affidavit of defense, which specifically states in precise and distinct terms grounds of a defense in whole or in part.14

7 D. C. Code, § 68, 31 St. at L. 1189; U. S. v. Schurz, 102 U. S. 378, 394, 26 L. ed. 167, 171; Kendall V. U. S., 12 Pet. 524, 9 L. ed. 1181; Decatur v. Paulding, 14 Pet. 497, 10 L. ed. 559; Kendall v. Stokes, 3 How. 87, 11 L. ed. 506; Com'r of Patents v. Whiteley, 4 Wall. 522, 18 L. ed. 335; U. S. ex rel. Miller v. Black, 128 U. S. 40, 50, 32 L. ed. 354; U. S. ex rel. Redfield v. Windom, 137 U. S. 636, 34 L. ed. 811; U. S. ex rel. Boynton v. Blaine, 139 U. S. 306, 35 L. ed. 183; Roberts v. U. S., 176 U. S. 221, 44 L. ed. 443; U. S. ex rel. Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 47 L. ed 1074. See infra, § 469.

8 Alexandria C. R. & Br. Co. v.

The general equity rules for the Federal courts do not apply to the Supreme Court of the District of Columbia.15

Whether the Act of March 3, 1915, previously quoted, which authorizes a suit improperly brought in equity to proceed at common law, and vice versa, and equitable defenses to be pleaded in actions at common law, applies to the Supreme Court of the District of Columbia does not seem to have been decided.16 If not, a case improperly brought in equity cannot be transferred to the common law side of the court.17

§ 69. Jurisdiction of the Court of Appeals of the District of Columbia. The appellate jurisdiction of the Court of Appeals of the District of Columbia is as follows: "Any party aggrieved by any final order, judgment, or decree of the supreme court of the District of Columbia, or of any justice thereof, including any final order or judgment in any case heard on appeal from a justice of the peace, may appeal therefrom to the said court of appeals; and upon such appeal the court of appeals shall review such order, judgment, or decree, and affirm, reverse, or modify the same as shall be just, except as provided in the following sections. Appeals shall also be allowed to said court of appeals from all interlocutory orders of the supreme court of the District of Columbia, or by any justice thereof, whereby the possession of property is changed or affected, such as orders for the appointment of receivers, granting injunctions, dissolving writs of attachment, and the like; and also from any other interlocutory order, in the discretion of the said court of appeals, whenever it is made to appear to said court upon petition that it will be in the interest of justice to allow such appeal." This court has further jurisdiction of appeals from the decisions of the Commissioner of Patents refusing to issue or to reissue patents,2 and

apply to this court. The judges thereof are preparing new rules substantially in accordance with these, which will probably be in force before this work is through the press. 15 Curriden v. Middleton, 232 U. S. 633.

16 38 St. at L. 956, Comp. St. 1251a. quoted, infra, § 80.

17 Ibid.

$ 69. 1D. C. Code, § 226, 27 St.

at L. 434, Comp. St. 573, 4 Fed. St. Ann. 466.

2 D. C. Code, § 228, 27 St. at L. 436, 9, Comp. St. 3391, 5 Fed. St. Ann. 502, Pierce's Fed. Code, § 7336, D. C. R. S., § 780; U. S. R. S., $ 4912, 5 Fed. St. Ann. 505; Pierce's Fed. Code, § 8777; McKnight v. Metal Volatilization Co., 128 Fed. 51.