[mrg]

PARTY, practice, contracts.
When applied to practice, by party is understood either the plaintiff or defendant.

In contracts, a party is one or more persons who engage to perform or receive the performance of some agreement. Vide Parties to contrads; Parties to 'actions; Parties to a suit in equity.
[/indent]2. Courts of admiralty enforce the performance of a contract by seizing into their custody the very subject of hypothecation; for in these case's the parties are not personally bound, and the proceedings are confined to the thing in specie. Bro. Civ. and Adm. Law, 98; and see 2 Gall. R. 200; 3 T. R. 269, 270.

HYPOTHECATION, civil law. This term is used principally in the civil law; it is defined to be a right which a creditor has over a thing belonging to another, and which consists in the power to cause it to be sold, in order to be paid his claim out of the proceeds.

2. There are two species of hypothecation, one called pledge, pignus, and, the other properly denominated hypothecation.

Pledge is that species , of hypothecation which is contracted by the delivery of the debtor to the creditor, of the thing hypothecated.

Hypothecation, properly so called, is that which is contracted without delivery of the thing hypothecated. 2 Bell's Com. 25, 5th ed.

3. Hypothecation is further divided into general and special when the debtor hypothecates to his creditor all his estate and property, which he has, or may have, the hypothecation is general; when the hypothecation is confined to a particular estate, it is special.

4. Hypothecations are also distinguished into conventional, legal, and tacit.

1. Conventional hypothecations are those which arise by the agreement of the parties. Dig. 20, 1, 5.

5. - 2. Legal hypothecation is that which has not been agreed upon by any contract, express or implied; such as arises from the effect of judgments and executions.

6. - 3. A tacit, which is also a legal hypothecation, is that which the law gives in certain cases, without the consent of the parties, to secure the creditor; such as,

1st. The lien which the public treasury has over the property of public debtors. Code, 8, 15, 1.

2d. The landlord has a lien on the goods in the house leased, for the payment of his rent. Dig. 20, 2, 2; Code, 8, 15, 7, 3d.

The builder has a lien, for his bill, on the house he has built. Dig. 20, 1. 4th, The pupil has a lien on the property of the guardian for the balance of his account. Dig. 46, 6, 22; Code, 6, 37, 20. 5th.

There is hypothecation of the goods of a testator for the security of a legacy he has given. Code, 6, 43, 1.

7. In the common law, cases of hypothecation, in the strict sense of the civil law, that is, of a pledge of a chattel, without possession by the pledgee, are scarcely to be found; cases of bottomry bonds and claims for seamen's wages, against ships are the nearest approach to it; but these are liens and privileges rather than hypothecations. Story, Bailm. §288.

It seems that chattels not in existence, though they cannot be pledged, can be hypothecated, so that the lien will attach, as soon as the chattel has been prodced. 14 Pick. R. 497. Vide, generally, Poth. de l'Hypoth´que; Poth. Mar. Contr. translated by Cushing, note. 26, p. 145; Commercial Code of France, translated by Rodman, note 52, p. 351; Merl. R´pertoire, mot Hypoth´que, where the subject is fully considered; 2 Bro. Civ. Law, 195; Ayl. Pand. 524; 1 Law Tracts, 224; Dane's Ab. h. t.; Abbott on Ship. Index, h. t.; 13 Ves. 599; Bac. Ab. Merchant, &c. G; Civil Code of Louis. tit. 22, where this sort of security bears the name of mortgage. (q. v.)


3. There are cases, however, where the remedy is either in personam or in rem.

Seamen, for example, may proceed against the ship or cargo for their wages, and this is the most expeditious mode; or they may proceed against the master or owners. 4 Burr. 1944; 2 Bro. C. & A. Law, 396. Vide, generally, 1 Phil. Ev. 254; 1 Stark. Ev. 228; Dane's Ab. h. t.; Serg. Const. Law, 202, 203, 212.

JURISDICTION,
Practice.
A power constitutionally conferred upon a judge or magistrate, to take cognizance of, and decide causes according to law, and to carry his sentence into execution. 6 Pet. 591; 9 John. 239.

COGNISANCE, practice.
Sometimes signifies jurisdiction and juudicial power, an sometimes the hearing of a matter judicially. It is a term used in the acknowledgment of a fine. See Vaughan's Rep. 207.

The tract of land or district within which a judge or magistrate has jurisdiction, is called his territory, and his power in relation to his territory is called his territorial jurisdiction.

2. Every act of jurisdiction exercised by a judge without his territory, either by pronouncing sentence or carrying it into execution, is null.

An inferior court has no jurisdiction beyond what is expressly delegated. 1 Salk. 404, n.; Gilb. C. P. 188; 1 Saund. 73; 2 Lord Raym. 1311; and see Bac. Ab. Courts, &c., C, et seq; Bac. Ab. Pleas, E 2.

3. Jurisdiction is original, when it is conferred on the court in the first instance, which is called original jurisdiction; (q. v.) or it is appellate, which is when an appeal is given from the judgment of another court.

Jurisdiction is also civil, where the subject-matter to be tried is not of a criminal nature; or criminal, where the court is to punish crimes.

Some courts and magistrates have both civil and criminal jurisdiction. Jurisdiction is also concurrent, exclusive, or assistant.

Concurrent jurisdiction is that which may be entertained by several courts.

It is a rule that in cases of concurrent jurisdictions, that which is first seized of the case shall try it to the exclusion of the other.

Exclusive jurisdiction is that which has alone the power to try or determine the Suit, action, or matter in dispute.

assistant jurisdiction is that which is afforded by a court of chancery, in aid of a court of law; as, for example, by a bill of discovery, by the examination of witnesses de bene esse, or out of the jurisdiction of the court; by the perpetuation of the testimony of witnesses, and the like.

4. It is the law which gives jurisdiction; the consent of, parties, cannot, therefore, confer it, in a matter which the law excludes. 1 N. & M. 192; 3 M'Cord, 280; 1 Call. 55; 1 J. S. Marsh. 476; 1 Bibb, 263; Cooke, 27; Minor, 65; 3 Litt. 332; 6 Litt. 303; Kirby, 111; 1 Breese, 32; 2 Yerg. 441; 1 Const. R. 478.

But where the court has jurisdiction of the matter, and the defendant has some privilege which exempts him from the jurisdiction, he may waive the privilege. 5 Cranch, 288; 1 Pet. 449; 8 Wheat. 699; 4 W. C. C. R. 84; 4 M'Cord, 79; 4 Mass. 593; Wright, 484. See Hardin, 448; 2 Wash. 213.

5. Courts of inferior jurisdiction must act within their jurisdiction, and so it must appear upon the record. 5 Cranch, 172 Pet. C. C. R. 36; 4 Dall. 11; 2 Mass. 213; 4 Mass. 122; 8 Mass. 86; 11 Mass. 513; Pr. Dec. 380; 2 Verm. 329; 3 Verm. 114; 10 Conn. 514; 4 John. 292; 3 Yerg. 355; Walker, 75; 9 Cowen, 227; 5 Har. & John. 36; 1 Bailey, 459; 2 Bailey, 267.

But the legislature may, by a general or special law, provide otherwise. Pet. C. C. R. 36. Vide 1 Salk. 414; Bac. Ab. Courts, &c., C. D; Id. Prerogative, E 6; Merlin, Rep. h. t.; Ayl. Pat. 317, and the art.

Competency.
As to the force of municipal law beyond the territorial jurisdiction of the state, see Wheat. Intern. Law, part a, c. 2, §7, et seq.; Story, Confl. of Laws, c. 2; Huberus, lib. 1, t. 3; 13 Mass. R. 4 Pard. Dr. Com. part. 6, t. 7, c. 2, §1; and the articles Conflict of Laws; Courts of the United States. See generally, Bouv. Inst. Index, h. t.
A LAW DICTIONARY ADAPTED TO THE CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA AND OF THE SEVERAL STATES OF THE AMERICAN UNION
John Bouvier Revised Sixth Edition, 1856
http://www.constitution.org/bouv/bouvier.htm