Show important decision delivered by judge at al the 11 march term of the district court at Haders burg 31 T E R W V jeffries vs D V sherman bherman and E H wilson this case is submitted upon motion tion to make R packer a party which is granted also a demurrer to complaint for the following grounds or causes for fon a misi binder of causes of action 2nd and joinder or blending of law and equity 3rd ard want of sufficient facts stated ath ambiguity of pleadings if the laws and practice act of this territory shall prevail I 1 hold that the complaint is sufficient andt and that hatin in foreclosing a mortgage the amount claimed for which the security given is ought sought to be foreclosed or effo enforced aced may liay be ascertained by the court and berha perhaps s through the intervention tion of aap a jury ury or referee if demanded ni that for any balance which may remain unsatisfied from such security the amount thereof may be docketed and become a lien on other real estate of the mortgagor but that no execution call can issue thereon tinder under the present law but if the chancery practice shail prevail then no such proceedings ce can to be had as in this case and the demurrer should be sustained to determine which we must determine the character of territorial courtland courts court sand and als also the legality or constitutionality of territorial legislation the theory upon which the various governments foi fer portions of the united states have bee been n organized has lias ever been that of leaving to the inhabitants all the tile powers of self government consistent with the supremacy and supervision of national authority and with certain fundamental principles established b by congress every american cr citizen t izen when he becomes a resident of a territory carries with him so much of the common law as is applicable to his condition and that becomes the law of the territory until modified or repealed by or under some authority derived from the united states such was the doctrine applied to the english colonies on this continent and ana the same amo hasteen has been applied to alithe all ali tile territories of the united states since I 1 have heretofore somewhat reflected upon the question presented by this demurrer and since its able presentation and and aud defense I 1 have given the subject what research and thought I 1 well could here and I 1 hold that there is no supreme court of the united nales lates tates in a territory nor is there any district court of the united states in a territory in the sense of ortho the tue constitution the judges it is true are appointed by the president of the united states under an act of congress but this does not make the coults courts they are aie authorized to hold united states tates courts this was long long ago decided and the case cue is reported in 9 howards 6 reports these courts are the legislative courts of the are created by virtue of that clause of the constitution which authorizes congress to make all needful rules and regulations respecting the tile territories rito ri rier belonging to the united states this was decided in the of peters reports and lias has never been reversed in my judgment the case of noonan vs lee decided in ad black is not in conflict with the tile decision in the peters that was a case comme commenced need in in a territorial court it is true never th eless it was the chancery power of the court that was invoked in that eliat case and that too before the adoption of rule 92 of the united states supreme court cour t originating as it did from the ho holdings I 1 dings in the tile case of orchard vs H hughes where no execution could issue assue for any a ily lly balance found duo due after exhausting the mortgage security and for that reason alone was the noonan case reversed the court then did not decide that the district courts in a territory were united states courts in in all cases except where chancery is invoked the rules in chancery practice must be observed neither is the holding in the case of durphy vs in conflict with this view the court in that case did not hold that it was incompetent for the territorial leg legislature gi slature to establish ch chancery charlery arcery ancery practice it only held in that regard that the territorial legislature ture eliad had no howerto power to pass laws in contravention of the constitution of the united states and I 1 would enquire what legislative body has or which shall deprive the supreme and district courts of a territory ry of chancery as well as common law jurisdiction in none of the cases above referred to is the legislature lature prohibited from regulating th the practice they simply prohibit the legislature from taking away and annulling chancery and common law jurisdiction this is just what the organic act of this territory expressly reserved to the united states and nothing more it did not prohibit the tile territorial legislature from even prescribing modes of exercising I 1 that jurisdiction except it be in in cases where the laws of the united states are sought to bo be enforced under chancery and common law j jurisdiction four pour distinct jurisdictions are given under the organic act of me the territory of montana and they aie ate first such as shall be limited by law what law why the law of the territory second and third it shall pos sess bess chancery changery as well as common law jurisdiction fourth and each of ald said couris courts referring to the district courts of the territory shall have and exercise th the same jurisdiction in all cases arasin arising under the constitution and laws 0 of t the he united states as is vested in the district and circuit courts of the united states and it further provides that the first six days of every term of said courts if necessary shall be appropriated to the trial of causes iris iriv arising under the constitution and laws al s of the united states and when chief justice marshal held t that hat none of these territorial courts were constitutional courts in which the judicial powers conferred by the constitution on the general government could be deposited he not only held right but that holding has never been reversed the tile jurisdiction with which these courts were clothed is not a part of that judicial power which is defined in the third article of the constitution but is conferred by con congress ress in in the tile execution of those gen general eral powers which that body possesses over the territories of the united states it cannot but be readily seen by a careful examination of the organic act of this territory that congre congress ss while delegating to it chancery and common law and such other jurisdiction as the territorial rit orial legislature might limit of course not inconsistent with the constitution of the united states did not attempt to prescribe the mode of practice for either of these jurisdictions while in the lastau tob tos jurisdiction ris therein given or retained it did for it provides that said courts ie wherein the united states invokes aid or jurisdiction shall have and exercise the same jurisdiction u is diction in in all cases arising un der e r the constitution and laws daws of the united states as a Is vested ed in the district and circuit courts of the united states State sand aud and it gives that jurisdiction preference over all other jurisdictions for the first six six days of each term evidently leaving all else to be regulated by territorial legislation and the rules of territorial courts for por these and many other reasons that might be assigned I 1 hold that the laws and practice act of this territory must prevail in the caso case at bar and in all other cases of a similar character and this holding I 1 think is fully sustained in the case of clinton vs en englebrecht in 13 wallace wailace re the demurrer will therefore be overruled bozeman auant avant courier |