for the benefit of the public, and not merely for the protection of the judge.'

Where a judge, once having jurisdiction, has been deprived of it, for example, by a change of venue, he is liable, if he proceeds further in the action, the same as if he had acted without jurisdiction from the beginning.

judicial immunity has been conferred by the laws of every civilized people." Grove v. Van Duyn, 44 N. J. Law, 656; 43 Am. Rep. 412. 'Hatch v. Galvin, 50 Cal. 441.

1

1 Randall v. Brigham, 7 Wall. 523.

CHAPTER VI.

COMMON LAW, EQUITY, AND STATUTORY JURISDICTION.

65. Generally.

66. Constitutional jurisdiction.

67. Probate jurisdiction.

68. Special cases and proceedings.

69. Criminal jurisdiction.

70. Maritime jurisdiction.

71. Impeachment.

72. Contempts.

73. Divorce.

74. Attachments.

75. Garnishment.

76. Sales of real estate.

77. Arbitration.

78. Ne exeat and arrest and bail.

79. Injunctions.

80. Mandamus.

81. Prohibition.

82. Habeas corpus.

83. Quo warranto.

84. New trials and vacation of judgments.

85. Writs of error.

86. Certiorari.

87. Bills, and Writs, of review.

88. Appeals.

89. Naturalization.

90. Pardons.

65. GENERALLY.-To attempt, at the present day, to separate the common law, equity, constitutional, and statutory jurisdiction of courts and treat of each, independently of the other, would lead to unnecessary and useless repetition and consequent confusion. These different kinds of jurisdiction have been so intermingled by constitutional and statutory provisions that the common law or equity can no longer be treated, in considering this subject, as a separate body of laws or rules of procedure. Such rules have been so added to here, and modified there,

by legislation, that the common law and equity rules affecting jurisdiction can no longer be said to exist independently of such legislation. In many cases courts of general jurisdiction are vested by constitutional or statutory provisions with common law and equity jurisdiction.' In such cases we must, although jurisdiction is given by express legislative enactment, look to the common law and equity to ascertain the extent and nature of the jurisdiction thus granted.

A grant of common law jurisdiction has been held to include not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined. in contradistinction to those where equitable rights alone were regarded and equitable remedies were administered; or where, as in the admiralty, a mixture of public law and of maritime law and equity was often found in the same suit, and includes criminal actions which are cases at law."

The grant of jurisdiction under the codes is sometimes measured by the "civil action" as defined by such codes. In many cases the jurisdiction of courts is specifically defined, without reference to the common law, or equity, and yet the jurisdiction thus granted is in its nature the same as existed in the common law and equity courts of England. And remedies are provided by statute that could not have been administered by either a common law or equity court under their general jurisdiction, as it existed without the aid of statutory provisions. In still other cases the common law and equity rules affecting jurisdiction are designedly modified, enlarged, or limited by legislative enactment.

'Bouton v. City of Brooklyn, 7 How. Pr. 198, 205; Chumasero v. Potts, 2 Mont. 242; Territory v. Flowers, 2 Mont. 531; Parsons v. Bedford, 3 Pet. 433.

Bouton v. City of Brooklyn, 7 How. Pr. 198.

3 Parsons v. Bedford, 3 Pet. 433, 446; Territory v. Flowers, 2 Mont. 531. Territory v. Flowers, 2 Mont. 531.

5

Folger v. Columbia Ins. Co., 99 Mass. 267, 274.

Statutes have provided different methods of obtaining equitable relief, particularly as respects what is sometimes called the assistant jurisdiction of courts of chancery, as in case of discovery and the like.' And in all of these cases the jurisdiction is really statutory, although it is measured in some cases by common law and equity rules.

The tendency of the courts, and particularly of the federal courts, seems to be to extend and broaden their equitable jurisdiction by a most liberal construction of the laws and usages fixing and defining their powers.2

Formerly the common law and equity courts were entirely separate and independent courts, and neither could exercise any jurisdiction belonging to the other. But now, in most of the states, and in England, these courts have been consolidated into one; the distinctions between common law and equity actions, and the practice relating thereto, have been abolished; and one court of general common law and equity jurisdiction has been substituted, to which jurisdiction over all cases at law and in equity has been given.3

This being so, the question whether the jurisdiction is at law or in equity has ceased to be of much practical importance in most of the states as a mere question of jurisdiction in the particular court. But as affecting the question of the remedy to be administered, the distinction between common law and equity causes of action can never cease to be important. However, it is believed that a general statement of the kind and character of the two classes of jurisdiction is all that is necessary in a work of this kind. The subject has received attention in the chapter on courts, and in the section on the different kinds of jurisdiction."

1 Ante, sec. 18, p. 74; Lamaster v. Scofield, 5 Neb. 148; Town of Venice r. Woodruff, 62 N. Y. 462.

2

* Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730,

746; United States v. Workingmen's Amalg. Council, 54 Fed. Rep. 994.

5 Ante, secs. 2, 3, 4.

6 Ante, sec. 9; see also ante, sec. 18; Foulks Ac. in Sup. Ct. 27-38.

The sections cited would seem to show, sufficiently for our present purpose, the general nature of the two classes of jurisdiction.1

In some of the states the common law, or parts of the common law, as the case may be, has been expressly adopted as the law of such states. And if this has not been done it is sometimes held that if the question arises in another state it will be presumed, in the absence of proof to the contrary, that the common law prevails in a sister state. But, generally, it is held that, in the absence of proof, the law of a sister state will be presumed to be the same as the law of the state in which the question arises whether it be the common law or not.3

Where a statute and the common law conflict, the statute must prevail, unless there is some constitutional provision to prevent it. But if general common law and equity jurisdiction is vested in a court by the constitution. such jurisdiction can not be taken away or limited by statute. And this mode of conferring jurisdiction upon courts of general jurisdiction is quite common. But unless the right has been preserved by some constitutional provision the common law may be changed at will by statute, and jurisdiction given by a general reference to the common law and equity may be taken away or changed at any time."

'But see on this point the following sections on the different common law and equity writs: Story's Eq. Pl., sec. 472; Town of Venice v. Woodruff, 62 N. Y. 462.

2 Norris v. Harris, 15 Cal. 226.

3 Marsters v. Lash, 61 Cal. 622; Monroe v. Douglass, 5 N. Y. 447; Hynes v. McDermott, 82 N. Y. 41, 47.

Ante, sec. 24, p. 146; post, sec. 66; People v. Nichols, 79 N. Y. 582. 5 Ante, sec. 10.

6 Munn . Illinois, 94 U. S. 113, 134; Wellman v. Chicago & G. T. Ry. Co., 83 Mich. 592; 47 N. W. Rep. 489, 495.

"A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law can not be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional