It is the nature of the jurisdiction, not the territorial limits within which it may be exercised, that determines whether a court is of inferior or general jurisdiction. State V. Burton, II Wis. 50.

Although it is a general rule that a record of court imports absolute verity, and cannot be contradicted by parol evidence, yet this rule does not forbid the exercise of a revisory power, by a court of general jurisdiction, over its own records. Mosseaux v. Brigham, 19 Vt. 457.

See also Smith v. Engle, 44 Iowa 265.

A court before which every question of civil right may be brought, either directly or indirectly, is a superior court of general jurisdiction. Gillet v. Powell, Spears Eq. (S. Car.) 142. Presumptions in Favor of Jurisdiction. Where the court has general jurisdiction, a want of jurisdiction will not be presumed against it. Biggs v. Blue, 5 McLean (U. S.) 148. On the other hand, the presumption of jurisdiction will not arise when the face of the record discloses the want of it. Washington, etc., R. Co. 2. Alexandria, etc., R. Co., 19 Gratt. (Va.) 592, 100 Am. Dec. 710. See, for a full treatment, the title JURISDICTION.

Must Proceed

Courts of Limited Jurisdiction in Mode Prescribed by Statute. If a court of limited jurisdiction does not proceed according to the mode prescribed by the statute by which it is created, its acts are nullities. 3 Phill. Ev. 987; Townshend v. Brooke, 9 Gill (Md.) 90; Brodess 7. Thompson, 2 Har. & G. (Md.) 120; State v. Warren, 28 Md. 338; Snyder's Appeal, 36 Pa. St. 166, 78 Am. Dec. 372.

Jurisdiction to Appear on the Record. - While, in courts of general jurisdiction, all the jurisdictional facts need not be set out in the complaint, courts of limited jurisdiction must not only act within the scope of jurisdiction, but it must appear on the face of the proceedings that they so acted, or their proceedings are coram non judice and void.

United States. Kempe 7'. Kennedy, 5 Cranch (U. S.) 173, Pet. (C. C.) 36: Turner v. Bank of North America, 4 Dall. (U. S.) 11; Walker v. Turner, 9 Wheat. (U. S.) 541. Alabama. - Owen v. Jordan, 27 Ala. 608; State . Ely, 43 Ala. 568; Pettus v. McClannahan, 52 Ala. 55.

California. - Doll . Feller, 16 Cal. 432; Lowe. Alexander, 15 Cal. 296. Delaware. Proctor v. State, 5 Harr. (Del.)

387.

Illinois. Anderson v. Gray, 134 Ill. 550, 23 Am. St. Rep. 696, citing 4 AM. AND ENG. ENCYC. OF LAW (1st ed.) 453; Chicago v. Rock Island R. Co., 20 Ill 286.

Indiana. Hopper v. Lucas, 86 Ind. 43; State v. Gachenheimer, 30 Ind. 63; Ohio, etc., R. Co. v. Shultz, 31 Ind. 150.

v. McKinney, Sneed

Kentucky. Martin (Ky.) 321. Maryland. (Md.) 36. Massachusetts. - Albee v. Ward, 8 Mass. 86; Williams v. Blunt, 2 Mass. 213; Smith v. Rice, 11 Mass. 513; Hunt v. Hapgood, 4 Mass. 122.

- Wickes v. Caulk, 5 Har. & J.

Vermont.

Hendrick v. Cleaveland, 2 Vt. 329; Clapp v. Beardsley, 1 Aik. (Vt.) 168; Walbridge v. Hall, 3 Vt. 114.

Virginia. Ballard v. Thomas, 19 Gratt. (Va.) 14; Devaughn v. Devaughn, 19 Gratt. (Va.) 556; Hill v. Pride, 4 Call (Va.) 107.

The jurisdiction must be expressly alleged. Gray v. Larrimore, 2 Abb. (U. S.) 542; Doll v. Feller, 16 Cal. 432; Lowe v. Alexander, 15 Cal. 296; Morrow v. Weed, 4 Iowa 77, 66 Am. Dec. 122; Kundolf v. Thalheimer, 17 Barb. (N. Y.) 506; Denning v. Corwin, 11 Wend. (N. Y.) 647, overruled in People v. Corlies, 1 Sandf. (N. Y.) 228.

-

United States Courts. The courts of the United States are of limited but not of inferior jurisdiction. Their proceedings, therefore, are not nullities, though their jurisdiction does not appear on the record. Until reversed, their proceedings are conclusive evidence between parties and privies; but if their jurisdiction does not appear of record, their proceedings are erroneous, and may be reversed. Kempe v. Kennedy, 5 Cranch (U. S.) 185; Skillern v. May, 6 Cranch (U. S.) 267; M'Cormick v. Sullivant, 10 Wheat. (U. S.) 199. See also Reed v. Vaughan, 15 Mo. 137, 55 Am. Dec. 133; Wood v. Mann, 1 Sumn. (U. S.) 578.

They can exercise no jurisdiction or powers not given by acts of Congress, either expresslv or by necessary implication. U. S. v. Tawan-ga-ca, Hempst. (U. S.) 304; U. S. v. Alberty, Hempst. (U. S.) 444.

In Gillet v. Powell, Spear's Eq. (S. Car.) 142, it is held that the federal courts are courts of superior jurisdiction, and that their judgments are binding upon all other courts until reversed, though the grounds of their jurisdiction do not appear upon the proceedings.

Special Cases. The term " special cases," in the California Constitution, includes no class of cases for which the courts of general jurisdiction have always supplied a remedy, and must therefore be confined to such new cases as are the creation of statutes, and the proceedings under which are unknown to the general framework of courts of common law and equity. Parsons v. Tuolumne County Water Co., 5 Cal. 43, 63 Am. Dec. 76.

The Test of Inferiority may be solved by showing that the court is either placed under the supervisory or appellate control of other courts, or that the jurisdiction as to the subject-matter is limited or confined. Bailey

COURTS-MARTIAL.

v. Winn, 113 Mo. 159; State v. Daniels, 66 Mo.

201.

The County Courts of Colorado are courts of superior or general jurisdiction. So held with reference to the power of court to punish for contempt. Terry v. Wright, (Colo. App. 1896) 47 Pac. Rep. 905. See also the title CONTEMPT, vol. 7, p. 25.

The County Courts of Illinois, in the exercise of the common-law jurisdiction conferred upon them by statute, are entitled to the same presumption in favor of their jurisdiction as circuit courts. They are courts of record, and the practice in them is the same as in the circuit courts. They have the same power to pass upon their own jurisdiction, and to exercise it, without setting forth in their proceedings the facts upon which they determine that jurisdiction. Anderson v. Gray, 134 Ill. 550, 23 Am. St. Rep. 696.

1. Provisional Courts. The Grapeshot, 9 Wall. (U.S.) 129; Burke v. Tregre, 22 La. Ann. 629; Mechanics', etc., Bank v. Union Bank, 22 Wall. (U. S.) 276. See also Leitensdorfer v. Webb, 20 How. (U. S.) 176; Jecker 7. Montgomery, 13 How. (U. S.) 498, 18 How. (U. S.) 110; Cross v. Harrison, 16 How. (U. S.) 164; U. S. v. Rice, 4 Wheat. (U. S.) 246; Texas v. White, 7 Wall. (U. S.) 700; Executive Documents, 2d session 29th Congress, vol. 3, Docu

ment 19.

Jurisdiction, Powers, and Procedure of Provisional Courts. See Burke v. Tregre, 22 La. Ann. 629; Noland v. Sterling, 21 La. Ann. 277. 2. The Grapeshot, 9 Wall. (U. S.) 129. See Noland 2. Sterling, 21 La. Ann. 277.

3. Black's Law Dict.

4. Ex p. Reed, too U. S. 20.

5. See the title MILITARY LAW.

6. Watson . Garvin, 54 Mo. 353. See the title RELIGIOUS SOCIETIES.

7. Wharton's Law Lexicon.

Wife of Cousin. - A testatrix gave a share of her residuary estate to her cousin Harriet Cloak." She had no cousin of that name; but she had a married cousin Harriet Crane, whose maiden name was Cloak, and also a cousin T. Cloak, whose wife's name was Harriet. Extrinsic evidence was admitted to show which was meant; and it was held that cousin might be understood in a popular sense as the wife of a cousin. The share was accordingly awarded to Harriet, wife of T. Cloak. Bowen, L. J., dissented. Fry, L. J., admitted that cousin was a term of which the dominant idea was consanguinity, but said: "I think that, in popular language, the word does apply to persons who are not related by consanguinity. In the present case we must either reject the name of the legatee, or else give a secondary or tertiary signification to the word cousin. I think the latter the more correct course. In re Taylor, 34 Ch. Div. 255, 56 L. J. Ch. 173.

8. Litt.. SS 389, 660; Adams's Glossary. 9. First Cousins. In re Parker, 15 Ch. Div. 528, 17 Ch. Div. 262, Stoddart z. Nelson, 6 De G. M. & G. 68; Stevenson v. Abingdon, 31 Beav. 305: Burbey v. Burbey, 6 L. T. 573.

Where a bequest is to cousins simply, in the absence of anything to explain the testator's meaning, first cousins only are entitled. Stevenson v. Abingdon, 31 Beav. 305.

In Stoddart v. Nelson, 6 De G. M. & G. 68, the lord chancellor (Lord Cranworth) said: "I think that if a testator says no more than that he gives to cousins, he must be taken to mean first cousins. That will be a practical construction, and one by which the parties entitled will be easily ascertained; it coincides, too, with ordinary experience, for when a person speaks of cousins he generally means

first cousins, the children of an uncle or aunt."

64

A gift to all my first cousins, or cousinsgerman," does not extend to a first cousin once removed, who is in fact a cousin in the second degree, though not called a second cousin, as being of the second class of persons to whom the appellation is given. Sanderson . Bayley, 4 Myl. & C. 56.

A testator gave legacies to several persons by name, describing each of them as a cousin, and then gave the residue to all such of his cousins as should be living at his death, and to all the children of such of his said cousins as might have theretofore died, or might die in his lifetime. The persons described by name were all first cousins; and it was held that cousins in the residuary clause meant first cousins. Caldecott v. Harrison, 9 Sim. 457

*

Extended to First Cousin Once Removed. — In Wilks v. Bannister, 30 Ch. Div. 512, a bequest to cousins was held to include first cousins once removed, and their children, it appearing from the will that the testator had used the term in that sense. Kay, J., said: "Those are the principal cases on the subject, and it appears from them that the construction of these words has not been uniform, but that the tendency of the later decisions has been to give them their strict meaning unless there be no person of the class a fact which it seems to have been assumed the testator would know. * * But a further indication is given in the codicil, by which the testator gave one hundred pounds to each of his cousins, Joseph Bannister and George Cole, in addition to any sum to which they may be entitled under my will.' Now Joseph Bannister and George Cole were first cousins once removed, and as the gift by the will was only to such first and second cousins as should survive the testator's wife and sister, the words may be entitled' probably referred to that contingency, and this affords a strong indication that the testator meant by the words' second cousins' his first cousins once removed; and that, I think, is the true meaning of the words as used in this will.”

1. Second Cousins. (See also SECOND COUSIN.) - A bequest to second cousins includes only those properly second cousins as defined in the text, and not all those who are in the degree of second cousins, viz., the sixth degree of consanguinity. It has been contended that it was a principle that the term was inclusive of all who were of this degree; but the contention was distinctly repudiated in In re Parker, 15 Ch. Div. 528, 28 W. R. 823. In this case the testator gave one-third of his property to his first cousins, and two-thirds to his second cousins. It was decided that " first cousins meant cousins-german, and that first cousins once removed were not included in the term ** second cousins.' Sir George Jessel, M. R., who delivered the opinion of the court, said:

"The term second cousins' has a wellknown, definite meaning; it means persons having the same great-grandfathers and greatgrandmothers. The relationship is a perfectly well-known and perfectly well-settled relationship. There never was any doubt about its meaning suggested by anybody that I am aware of. Why should the meaning of it here be altered without a context? It is one of the first principles of construction that there should be no alteration in the proper sense of words without a context. Here there is no context."

There may be an exception, however, where at the time of making his will the testator had no second cousins, in which case he must have meant something else; and this meaning the court must determine. Upon this ground are explained some of the earlier cases set out below.

A testator gave the residue of his estate to A. and B. and his first and second cousins. At the time of making his will, and at his death, he had no second cousins, his only collateral relatives being a first cousin, three first cousins once removed, and a great-niece. The court held the intention of the testator to be, to give to relatives not more remote than second cousins, and accordingly divided the estate equally among the seven mentioned. Mayott v. Mayott, 2 Bro. C. C. 125.

In Silcox v. Bell, 1 Sim. & S. 301, it was decided that the great-grandchildren of uncles and aunts were not second cousins, but first cousins twice removed; but that they were, however, of the degree of relationship of second cousins, and entitled as such under a bequest. The latter part of this decision was disapproved by Jessel, M. R., in In re Parker, 15 Ch. Div. 528, 28 W. R. 823, 17 Ch. Div. 262. Second Cousins - First Cousins Once Removed. - A testator bequeathed property among my second cousins. The testator had no second cousins, either at the date of his will, or at his death, or any born afterwards. It was held that first cousins once removed were entitled. Chitty. J., said: "I do not understand that in that judgment, or in the judgment of the Court of Appeal, the case of Slade v. Fooks, 9 Sim. 386, decided by the Vice-Chancellor of England, has been overruled. In that case the gift was to the second cousins; and the vice-chancellor, in disposing of the case, said, in words which are applicable to the present case, that the testator had only two generations of persons in her contemplation, namely, those whom she called her second cousins, and the issue of such of them as were dead, and that it was very common for persons to call the children of their first cousins their second cousins. I agree with that latter observation. I think it is very common; and therefore, in my judgment, I have not to deal with a case in which the terms are strictly technical terms. I think the term second cousins' may, on a fair consideration of this will with reference to

the facts as proved, be taken to denote cousins who are not exactly related according to the legal description in the degree of second cousins; and so I hold, and it follows from Slade . Fooks, 9 Sim. 386, and rightly, that the persons who take under this will are the first cousins once removed." In re Bonner, 19 Ch. Div. 201.

Where the bequest was to the testatrix's second cousins of the name of S., and she had no second cousins, but had three first cousins once removed, two of whom survived, and the third had died leaving children, it was held that the two survivors and the children of the third took to the exclusion of the children of the survivors, who were of the degree of second cousins, on the ground that it was very common for people to call children of first cousins second cousins, Slade 7. Fooks, 9 Sim. 386.

But, as a rule, a first cousin once removed is not entitled to share in a fund bequeathed to second cousins. "Those only who have either the same great-grandfather or the same great-grandmother are second cousins to each other.' Bridgnorth v. Collins, 15 Sim. 541. In re Parker, 15 Ch. Div. 528, set out supra.

Under a bequest to the testator's first and second cousins and the children of his kinsman G. C., which children were his first cousins twice removed, all persons related in the degree of second cousins were admitted to take, in Charge v. Goodyer, 3 Russ. 140. See this case remarked on in In re Parker, 15 Ch. Div. 528, 28 W. R. 823.

Incest. (See also the title INCEST.) — The relation between uncle and niece is nearer than that between cousins; so held in a statute against incest. State v. Brown, 47 Ohio St. 102, where the court said: "The first count under consideration (No. 2 in the indictment) avers that the defendant and Rose Cramer, with whom he committed the sexual act, were uncle and niece, respectively, to each other, but does not aver in direct terms that that relationship is nearer than that between cousins, nor does it show whether they were related by blood or affinity. Is it necessary to aver in express terms that the kinship is nearer than that between first cousins, or will it suffice if the degree of it is averred, and it is one necessarily nearer than cousins? While the statute

*

*

*

(section 7019), in general terms, prohibits the sexual act between persons nearer of kin than cousins,' it may well be doubted whether a general averment, in the words of the statute, would be definite enough to satisfy the rules of criminal pleading. It would remain uncertain which of the several degrees of kinship, nearer than that between cousins, was intended to be charged. Where, however, the precise degree of kinship is averred, all indefiniteness disappears. Nor is it for the jury. to determine, in each particular case, whether the kinship between the parties to the act, be they father and daughter, brother and sister, or uncle and niece, is, or is not, nearer than that between cousins. This is matter of law determinable by fixed principles applicable alike to every case. The kinship being averred to be that of uncle and niece, it was unnecessary to aver in addition, that which was matter of law, that they were nearer of kin than cousins. The authorities in support of this principle are innumerable; one only will be referred to. Bishop says, quoting from Buller, J. It is one of the first principles of. pleading, that you have only occasion to state facts, which must be done for the purpose of informing the court whose duty it is to declare the law arising upon those facts, and apprise the opposite party of what is meant to be proved in order to give him an opportunity to answer or traverse it.' 1 Bishop Crim. Procedure, 329. That the kinship between an uncle and his niece is nearer than that between cousins, within the meaning of this statute, is clear, notwithstanding that by the rules of the common law both were considered as standing in the same degree. The rule of the commen law which accomplishes that result relates to the descent of property only; for, notwithstanding this rule of the common law, sexual commerce between uncle and niece in England is incestuous, while that between cousins is not. The law respecting incest, from the nature of the mischief to be prevented, necessarily regards the actual kinship of the parties as the predicate for its prohibitory enactments. Griffith v. Reed, 1 Hagg. Ecc. 195; Woods v. Woods, 2 Curt. Ecc. 516; Story on Conflict of Laws, 114 and 208. And the kinship between an uncle and niece is double that between cousins."

Volume VIII.