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of the parties, can induce this court to permit itself to be converted into one in which questions of law may be mooted, at the will of suitors. Appeal dismissed.

BREWINGTON V. Lowe, Supreme Court of Indiana, 1848 (1 Ind.


Smith, J. The record in this case purports to contain the proceedings in an action of trespass quare clausum fregit, instituted in the Dearborn circuit court, by Joshua Brewington against George P. Lowe. The declaration contains five counts, the locus in quo specified in each count being different. The defendant pleads in abatement to the jurisdiction of the court, that the said several closes, in the first, second, and third counts mentioned are situate within the county of Ohio, and that the closes in the fourth and fifth counts mentioned are within the county of Ripley. The replications allege that all of said closes are in the county of Dearborn tendering issues to the country. The cause was then submitted to the court for trial, and there was a finding and judgment for the defendant.

By a bill of exceptions it appears that upon the trial the following facts were admitted: I. That the closes described in the second and third counts of the declaration are situate in that territory stricken or attempted to be stricken from Dearborn county to form and organize Ohio county by the act of the legislature of the fourth of January, 1844; 2. That the close described in the first count is situate in the territory stricken or attempted to be stricken from Dearborn county, and added or attempted to be added to Ohio county by the act of the seventh of January, 1845; 3. That the closes in the fourth and fifth counts mentioned are situate in that part of Dearborn county taken or attempted to be taken to form part of Ripley county by the act of December 27, 1816. It also appears that upon the trial the plaintiff offered certain testimony with a view of establishing the fact that, by the act of December 27, 1816, detaching a portion of the county of Dearborn for the formation of the county of Ripley, the former county was reduced so as to contain less than four hundred square miles of territory, and that consequently, that act as well as the subsequent acts forming the county of Ohio out of the territory then remaining to Dearborn county, were, so far as regarded the rights of the latter county, unconstitutional and void, and could not divest the courts of that county of the jurisdiction they had previously been authorized to exercise within

the limits of the territory thus attempted to be detached. This testimony was excluded by the circuit court on the ground that it was not competent for the court to hear testimony, the object of which was to show that the several acts of the legislature, above referred to, were void by reason of their unconstitutionality.

In the history given of this case by the counsel for the plaintiff in error, and his statement is confirmed by the counsel for the defendant, we are informed that this suit was not instituted to settle any matter really in controversy between the nominal parties, but as a device by certain persons who believed "that the legislature had been imposed upon as to the quantity of land in Dearborn county," when the acts above referred to were passed, and were desirous to test the constitutionality of those acts by bringing them in question in some way before a judicial tribunal. These persons accordingly procured surveys to be made of the territory embraced within the counties of Dearborn and Ohio, and then instituted this action avowedly for the purpose of testing the constitutionality of the acts of the legislature forming the counties of Ripley and Ohio, by describing closes in the different counts of the declaration situate in each of the several pieces of territory which had been taken by those acts from the county of Dearborn, and thus raising an issue as to the jurisdiction of the Dearborn circuit court within the territory thus detached. We think these proceedings were instituted under a mistaken apprehension of the proper functions of the judiciary. Courts of justice are established to try questions pertaining to the rights of individuals. An action is the form of a suit given by law for the recovery of that which is one's due, or a legal demand of one's right. In such actions, if there is found to be a conflict of laws as they relate to the particular case under consideration, whether such conflict arises from constitutional reasons or otherwise, there can be no doubt that, from the very nature of the case, a decision must be rendered according to the laws which are paramount. But courts will not go out of their proper sphere to determine the constitutionality or unconstitutionality of a law. They will not declare a law unconstitutional or void in the abstract, for that would be interfering with the legislative power, which is separate and distinct. It is only from the necessity of the case, when they are compelled to notice such law as bearing upon the rights of the parties to a question legally presented for adjudication that they will go into an examination of its validity, and then the decision has reference

only to that particular question, except so far as it may operate as a precedent, when it may afterwards become necessary to decide similar cases.

But unless some individual right directly affecting the parties litigant is thus brought in question so that a judicial decision becomes necessary to settle the matters in controversy between them relative thereto, the courts have no jurisdiction; and it would be a perversion of the purposes for which they were instituted and an assumption of functions that do not belong to them, to undertake to settle abstract questions of law in whatever shape such questions may be presented. The impropriety of doing so in the present case is manifest from the facts, that the question professed to be litigated considered with reference either to the point of law attempted to be raised, or the importance of the interests involved is one of very grave character, and the parties who would be chiefly affected by its decision are not before the court, and have no opportunity of being heard. Indeed, it is well settled that courts will not take cognizance of fictitious suits instituted merely to obtain judicial opinions upon points of law: Loughead v. Bartholomew, Wright (Ohio), 90; Hoover v. Hanna, 3 Blackf. 48; Bunn v. Riker, 4 Johns. 434 (4 Am. Dec. 292); Jones v. Randall, Cowp. 37; Da Costa v. Jones, Id. 729; Allen v. Hearn, 1 T. R. 56; Atherfold v. Beard, 2 Id. 610; Newling v. Francis, 3 Id. 697; Egerton v. Furzeman, 1 Car. & P. 613.

As we are distinctly informed by both parties that this is a fictitious suit, without inquiring into the grounds upon which the judgment was rendered, as it was for the defendant, and only for costs, the judgment below will be affirmed at the plaintiff's costs in this court.

The judgment is affirmed, with costs.



So much of substantive law is, for historical reasons, bound up in procedure, that it is highly important for the student to become acquainted at once with the more important common law actions. Although these actions are now superseded by more simple and flexible forms of procedure, they have given rise to or correspond to important distinctions in the substance of the law, which are still of daily application.

The principal common law actions are ten: (1) Ejectment, (2) Detinue, (3) Replevin, (4) Debt, (5) Covenant, (6) Special Assumpsit, (7) General (Indebitatus) Assumpsit, (8) Trespass, (9) Trespass on the Case (Case), (10) Trover. This is the final form of these actions, after they had developed into a logical system. Historically, Ejectment, Assumpsit, Case, and Trover were developments out of Trespass, and Assumpsit and Trover were in form to the end actions of Trespass on the Case.

SCHEME OF THE COMMON-LAW ACTIONS. 1. To recover property.

To recover real property,


The real actions are obsolete, except that the Writ of Entry is in use in Massachusetts, New Hampshire, and Maine.

2. To recover possession

Of real property,

Of personal property


acquired lawfully by the defendant, but subject to a superior right of immediate possession in the plaintiff,

DETINUE. taken by the defendant from the plaintiff, . . REPLEVIN. Replevin, in this country, has entirely superseded detinue, and lies in all cases to recover possession of personal property.

3. To recover damages.

(1) Ex contractu.

To recover a liquidated sum of money, due upon specialty, record, statute, or simple contract,



To recover damages for breach of a covenant, or promise under seal,


To recover damages for breach of a simple contract,

verbal contract.


To recover damages upon Quasi Contract (no promise,
but the case dealt with in law as if there had been one),
an implied

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(2) Ex delicto. = a tort

This part is direct upon the person or property

To recover damages for a direct physical interference with
the person or property, .
Where the trespass consists in taking chattel property
out of the plaintiff's possession, the action is called TRES-
PASS DE BONIS ASPORTATIS, or Trespass de bonis.
Where the trespass is committed upon real property, the
Trespass quare clausum.

This is indirect of other actions (and not breaches of contract) which To recover damages for wrongful acts not within the scope cause injury, without direct physical interference with person or property, (e. g., Libel, Slander, a Nuisance, Deceit),

injury to Ressonfor property

To recover damages for the conversion of chattels,




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.

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; and they are the same which the civil law calls "actiones in personam, quae adversus eum intenduntur, qui ex contractu vel delicto obligatus est aliquid dare vel concedere." Of the former nature are all actions upon debt or promises; of the latter, all actions for trespasses, nuisances, assaults, defamatory words, and the like.

Real actions, (or, as they are called in the Mirror, feodal actions,) which concern real property only, are such whereby the plaintiff, here called the demandant, claims title to have any lands or tenements, rents, commons, or other hereditaments, in fee-simple, feetail, or for term of life. By these actions formerly all disputes concerning real estates were decided; but they are now pretty generally laid aside in practice, upon account of the great nicety required in their management, and the inconvenient length of their process: a much more expeditious method of trying titles being since introduced, by other actions personal and mixed,

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