457.) This jurisdiction at first was supposed to be limited by the act of 1845; but in The Magnolia, 20 How. 296, it was held that it did not depend on the act of 1845, but was a part of the original grant of the power in the Judiciary Act of 1879. In the long period before 1845 the states upon the lakes and rivers had passed statutes giving to their own courts a kind of admiralty jurisdiction in rem over boats and vessels. This was needful while the federal courts supposed they had no such jurisdiction there; and it was twenty years after they assumed that jurisdiction before the question was raised and decided whether the state statutes and remedies were consistent with the exclusive admiralty jurisdiction of the United States. But in 1867, the case of The Hine v. Trevor, 4 Wall. 555, decided that all such state laws giving suits in rem against boats and vessels and other parts of admiralty jurisdiction to state courts were unconstitutional and void, as conflicting with that exclusive jurisdiction. The saving to suitors of a "common-law remedy where the common law is competent to give it" does not save any proceeding in rem as used in the admiralty. The common law knows no such procedure. (The Moses Taylor, 4 Wall. 411, and The Belfast, 7 Wall. 624.) The process in rem and the maritime lien are correlative. (The Rock Island Bridge, 6 Wall. 213.) For the earliest history of the American law on the subject the student may refer to a note of Judge Story's in 5 Wheat. pp. 103-162, and for the later changes to one by the late John N. Rogers of Iowa, in 1 West. Jur. pp. 241-247. (20) Directed to the judge and parties of a suit in any inferior court, page 112. The writ of prohibition is held not restricted in its application to inferior courts: it may also issue to individuals, commissioners of roads, and others exercising little if any judicial functions (State v. Commrs. of Roads, 1 Mill. Const. 35; 12 Am. Dec. 596, with note, 604-609, treating fully of the subject); and to restrain the illegal collection of taxes. (Berger v. Carter, 1 McMull. 410: Talbot v. Dent, 9 Mon. B. 526.) But except in these two states the writ seems to be strictly confined to the cases marked out by Blackstone in the text. It is not intended for the correction of errors, but only to restrain the excess of jurisdiction. (People v. Leward, 7 Wend. 518; People v. Supervisors of Queens, 1 Hill, 195.) CHAPTER THE EIGHTH. OF WRONGS, AND THEIR REMEDIES RESPECTING THE RIGHTS OF PERSONS. The former chapters of this part of our commentaries having been employed in describing the several methods of redressing private wrongs, either by the mere act of the parties, or the mere operation of law; and in treating of the nature and several species of courts; together with the cognizance of wrongs or injuries by private or special tribunals, and the public ecclesiastical, military, and maritime jurisdictions of this kingdom: I come now to consider at large, and in a more particular manner, the respective remedies in the public and general courts of common law for injuries or private wrongs of any denomination whatsoever, not exclusively appropriated to any of the former tribunals. And herein I shall, first, define the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury and shall, secondly, describe the method of pursuing and obtaining these remedies in the several courts. [See note 21, page 186.] First then, as to the several injuries cognizable by the courts of common law, with the respective remedics applicable to each particular injury. And, in treating of these, I shall at present confine myself to such wrongs as may be committed in the mutual intercourse between subject and subject; which the king as the fountain of justice is officially bound to redress in the ordinary forms of law: reserving such [116] injuries or incroachments as may occur between the crown and the subject, to be distinctly considered hereafter, as the remedy in such cases is generally of a peculiar and eccentrical nature. 8 Now, as all wrong may be considered as merely a privation of right, the plain natural remedy for every species of wrong is the being put in possession of that right, whereof the party injured is deprived.* This may either be effected by a specific delivery or restoration of the subject-matter in dispute to the legal owner; as when lands or personal chattels are unjustly withheld or invaded: or, where that is not a possible, or at least not an adequate remedy, by making the sufferer a pecuniary satisfaction in damages; as in case of assault, breach of contract, etc.: to which damages the party injured has acquired an incomplete or inchoate right, the instant he receives the injury; though such right be not fully ascertained till they are assessed by the intervention of the law. The instruments whereby this remedy is obtained (which are sometimes considered in the light of the remedy itself) are a diversity of suits and actions, which are defined by the mirrour to be "the lawful demand of one's right:" or as Bracton and Fleta express it, in the words of Justinian, jus prosequendi iu judicio quod alicui debetur. [See note 22, page 189.] The Romans introduced, pretty early, set forms for actions and suits in their law, after the example of the Greeks; and made it a rule, that each injury should be redressed by it's proper remedy only. "Actions, say the pandects, composite sunt quibus inter se homines disceptarent, quas actiones ne populus prout vellet institueret, certas solennesque esse voluerunt." a The forms of these actions were originally preserved in the books a See book II. ch. 29. 8 Previously," one." **Quoted, 41 Me. 56; 13 Ohio St. 453. + See Am. note 76 to book 2, page 612. c Inst. 4. 6. pr. d Ff. 1. 2. 2. § 6. - Quoted, 13 Ohio St. 453; partly, 41 Me. 56: 2 N. H. 212; 37 N. H. 458; 5 Heisk. 477; 4 Yerg. 339. Eq. 50; 72 Pa. St. 483. Cited, 28 Conn. 22; 48 Me. 255; 17 N. J. of the pontifical college, as choice and inestimable secrets, till one Cneius Flavius, the secretary of Appius Claudius stole a copy and published them to the people. The [117] concealment was ridiculous: but the establishment of soine standard was undoubtedly necessary to fix the true state of a question of right; lest in a long and arbitrary process it might be shifted continually, and be at length no longer discernible. Or, as Cicero expresses it, "sunt jura, sunt formula, de omnibus rebus constitutæ, ne quis aut in genere injuriæ, aut in ratione actionis, errare possit. Expressæ enim sunt ex uniuscujusque damno, dolore, incommodo, calamitate, injuria, publicæ a prætore formulæ, ad quas privata lis accommodatur." And in the same manner our Bracton, speaking of the original writs upon which all our actions are founded, declares them to be fixed and immutable, unless by authority of parliament. And all the modern legislators of Europe have found it expedient, from the same reasons, to fall into the same or a similar method.* With us in England the several suits, or remedial instruments of justice, are from the subject of them distinguished into three kinds; actions personal, real, and mixed. [See note 23, page 191.] † Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof: and, likewise, whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon torts or wrongs [see note 24, page 192]: e Cic. pro Muræna. § 11. de orat. l. 1. c. 41. f Pro. Qu. Roscio. § 8. g Sunt quædam brevia formata super certis casibus de cursu, et de communi consilio totius regni approbatu et concessa, quæ quidem nullatenus mutari poterint absque consensu et voluntate eorum. (1. 5. de exceptionibus. c. 17. 2.) *Cited, "for by far the greater portion of the wrongs to which we are exposed in our artificial condition of society the law does not afford any redress," 6 La. An. 511; 54 Am. Dec. 569; generally, 2 Mill. Const. 300. t-t Quoted, 57 Me. 408. Cited, 4 Mass. 140; 15 N. H. 104. |