The original and exclusive jurisdiction of the federal tribunals extends to controversies of the following nature:

1. To cases between two states,

2. To cases where a foreign ambassador, minister, or consul, or the domestics of the two former are parties defendants.

3. To cases in which a state is defendant, save only as regards controversies between a state and its own citizens.

4. To cases arising under the patent or copyright laws, or the revenue laws of the United States.

5. To cases of admiralty or maritime jurisdiction, and

6. To criminal cases arising within the limits of that jurisdiction, or cognizable under the authority of the United States.

In Dudley v. Mayhew, 3 Comst. 9, it was held by the court of appeals in this state that, in cases falling under class 4, the state courts cannot exercise jurisdiction, even by consent. The personal privileges under class 2, seem, however, capable of being waived by continued non-assertion, though the right of asserting them can never be barred, but may, on the contrary, be exercised at any stage of any proceeding in the local tribunals. See this subject more fully considered hereafter, under the head of parties defendants in actions in the courts of this state.

The concurrent jurisdiction of the federal tribunals may be shortly stated as comprising,

1. All cases in law or equity, arising under the Constitution, laws and treaties of the United States; or where an alien sues for tort in violation of the law of nations.

2. Cases wherein foreign ambassadors, consuls, &c., are plaintiffs.

3. Cases in which the United States are plaintiffs.

4. Controversies in which a state is plaintiff, and individuals are defendants.

5. Controversies between a state defendant, and its own citizens.

6. Controversies between citizens of different states, or between citizens of the same state, claiming lands under grants of different states.

7. Controversies between a state or the citizens thereof, and a foreign state.

8. Controversies between citizens and aliens.

The jurisdiction under classes 3, 6, and 8, is, however, limited

to cases where the value of the thing in controversy exceeds five hundred dollars, the amount of the claim itself, and not of the recovery, being the criterion of value. Where exercisable, the jurisdiction in cases of this description is so far paramount, that they are removable from the state court to the federal tribunal by authority of the latter, by means of a proceeding analagous to certiorari. See Kent Com. vol. 1, p. 303. See also Field v. Blair, 1 C. R. (N. S.) 292, 361; Suydam v. Ewing, Ad. 29.

In cases falling under Nos. 6 and 8 of the last-mentioned classes, it is essential that the facts conferring jurisdiction, should appear on the face of the record, or the federal tribunal cannot take cognizance of them at all. In particular, where one party is an alien, the citizenship of the other must be affirmatively shown, the jurisdiction of the federal courts not extending to suits between one alien and another. See 1 Kent, 344 and 345, and the cases there cited.

The appellate jurisdiction of the federal tribunals extends, in the last place, to all cases in which any decision shall have been pronounced by the highest court of any state, repugnant to the Constitution, treaties, or statutes of the United States, or drawing in question any commission issued or authority conferred by the general government. The extent of this jurisdiction will be found defined at 1 Kent Com. p. 299 and 300, and the whole of the lecture, No. XIV, in which that passage is contained, and of the following one, No. XV, in which the subject is more fully entered upon, and various authorities are cited, demands and should receive the student's most careful attention.

CHAPTER III.

OF THE COURT OF APPEALS.

PROCEEDING then upon the consideration of the jurisdiction and office of each of the different tribunals whose decisions are affected by the Code of Procedure, the first in dignity and importance is the court of appeals, the tribunal of last resort, except in those few cases arising on points of constitutional law, in which, as before noticed, the appellate jurisdiction of the supreme court of the United States may be invoked.

Such being the constitution and powers of the court of appeals, it need hardly be remarked, that its reported decisions are of the highest authority, and that a principle of law once established by one of those decisions, is, as a general rule, conclusive upon the inferior jurisdictions, until either reversed or modified by the same tribunal, or by the paramount authority of the federal court of appeal, in cases where that jurisdiction may be invoked.

The court in question occupies the place and exercises the powers of the court of errors under the old system. The provisions on its original creation will be found in article 6 of the constitution of 1846, and also in article 2 of the judiciary act, laws of 1847, c. 280. It consists of eight judges-four elected by the electors of the State, one at the expiration of every two successive years, and four selected from the justices. of the supreme court; the judge of the former class having the shortest time to serve, being, from time to time, the chief judge ex officio. Its sittings were at first intended to be migratory, and were held in turn in each of the different judicial districts; but, by section 13 of the Code of 1851, they are now permanently fixed for the future, at Albany, where four terms are to be held every year, at the periods therein specified, with a power to appoint additional terms when required by the public interest.

The following are the provisions of the Code, as last amended, on the subject of the important jurisdiction exercisable by this high tribunal:

§ 11. The court of appeals shall have exclusive jurisdiction to review, upon appeal, every actual determination hereafter made at a general term, by the supreme court, or by the superior court of the city of New York, or the court of common pleas for the city and county of New York, in the following cases, and no other :

1. In a judgment in an action commenced therein, or brought there from another court; and upon the appeal from such judgment, to review any intermediate order involving the merits, and necessarily affecting the judgment.

2. In an order affecting a substantial right, made in such action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken.

3. In a final order affecting a substantial right, made in a special proceeding, or upon a summary application, in an action, after judg

ment.

But such appeal shall not be allowed in an action originally commenced in a court of a justice of the peace, or in the marine court of the city of New York, or in an assistant-justices' court of that city, or in a justices' court of any of the cities of this State.

§ 12. The court of appeals may reverse, affirm, or modify the judgment or order appealed from, in whole or in part, and as to any or all of the parties; and its judgment shall be remitted to the court below, to be enforced according to law.

On reference to the corresponding section in the measure of 1849, it will be seen that the recent amendments materially extend the powers previously exercised by this court, the whole of subdivision 2 being entirely new.

In the Code of 1851, a fourth subdivision was added, by which an appeal lay to this court in an order granting a new trial.

The latter provision was probably inserted in consequence of the decisions in Duane v. The Northern Railroad Company, 3 Comst. 545; 4 How. 364; Lansing v. Russell, 2 Comst. 563; 4 How. 213; and Tilley v. Phillips, 1 Comst. 610; 3 How. 364; 1 C. R. 111: in all of which it was held that orders of this nature were not proper subjects for the interference of the appellate tribunal; both because they could not be held to come within the description of " a final determination of the rights of the parties in the action," the definition of a judgment in section 245, and also inasmuch as they were in their nature matters addressed to the discretion of the court below, with the exercise of which discretion the higher tribunals have hitherto, as a general rule, always refused to interfere. On the recent amend

ment these views have again prevailed; the authority of the above cases is reestablished, and the jurisdiction of this court is restored to its former consistency, by the exclusion of all discussions on questions of fact, except only as subsidiary to questions of law, under any circumstances.

It will be observed that, by this amendment, the municipal court of Brooklyn, ranked with justices' courts in the Code of 1849, is no longer to be looked upon as a court of inferior jurisdiction, but as standing, for the future, in regard to the review of its decisions, on the same level as other city and county courts.

The amendment effected in section 14, by which, in the event of five judges not concurring in the judgment on any case submitted to the court, that case is, in every instance, to be reheard, and that twice, in the event of a second disagreement, before judgment of affirmance is given, in consequence of the members of the court being equally divided, is an important change from the code of 1849, under which, on such an event occurring, the judgment of the court below was affirmed, as of course, unless a rehearing was specially ordered.

The question raised and decided in Oakley v. Aspinwall, 3 Comst. 547, 9 L. O. 45, as to the effect of a judge taking part in the proceedings, when under disqualification on the ground of relationship, will be borne in mind. A serious difficulty was raised in the same case, as to whether this court could be held at all by a less number than by the whole of the eight judges. The proposition that it could be so held was, however, decided in the affirmative by a majority of six; which majority also held that one consisting of four judges out of seven was competent to make an order upon motion, but declined to give any opinion upon the further question as to whether such a majority were competent to pronounce a judgment. It seems clear upon the face of the measure that a majority of four only would not possess adequate jurisdiction in this last respect, inasmuch as, by the express provisions of sec. 14, a concurrence of five judges is necessary for that purpose.

When judgment of affirmance is pronounced in open court, without any public expression of dissent on the part of any of its members, it would seem that it is not competent for the parties to go behind that judgment, and to apply for a rehearing on any allegation, that, in their consultations out of court, the judges were equally divided in opinion. The public act of the court,