well known heads of jurisdiction, or to be included in "cases at law," "suits in equity," or the "civil action" of the codes. They have been, by judicial decisions in some of the states, put into a class by themselves, and denominated "special cases" or "special proceedings." While such a distinction has no doubt been countenanced by the language of constitutional and statutory provisions in some of the states, it is one that does not really exist, and its recognition has led to much unnecessary confusion. In the nature of things, a cause of action falls within one or the other of the well defined classes of jurisdiction above mentioned, and the attempt to create a new class of actions or proceedings governed by different rules affecting jurisdiction and procedure must be regarded as a mistake. The civil action of the code should be held to include every judicial proceeding the object of which is to assert a civil right or obtain a civil remedy."

now cases at law. Whenever, then, a case is known as one at law, or at common law, any court whose jurisdiction is described by the language,, 'law or common law,' can take cognizance of it. A criminal action is one at law. It is a public wrong which is redressed by an action in the name of the people in their collective or aggregate capacity. A private wrong is redressed in the name of the party injured. An indictment with us is nothing but a pleading on the part of the territory. From a review of the common law writers, it will be seen that a criminal action is always classed as one at law. Chitty's Blackstone, bk. 3, pp. 1, 2; Id., bk. 4, p. 4. For pleas or suits are regularly divided into two sorts, pleas of the Crown, which comprehend all crimes and misdemeanors, wherein the king, on behalf of the public, is the plaintiff; and common pleas, which include all civil actions depending between subject and subject.' Chitty's Blackstone, bk. 3, p. 40. Other authorities might be cited to the same point. An interpretation of this clause in our Organic Act has been made by the Supreme Court of the United States in the case of Ferris v. Higley, 20 Wall. 375. In referring to the language, 'common law jurisdiction,' which occurs in the ninth section of the Organic Act of Utah (which section is the same as that of our Organic Act), the court says: "The common law and chancery jurisdiction here conferred on the district and supreme courts is a jurisdiction very ample and very well understood. It includes almost every matter, whether of a civil or criminal cognizance, which can be litigated in a court of justice." Territory v. Flowers, 2 Mont. 531, 533.

Post, sec. 68; Appeal of Houghton, 42 Cal. 35, 56; Parsons v. Tuolumne Co., 5 Cal. 43; 63 Am. Dec. 76.

"As to the meaning of the terms "controversies" and "cases," as used

Where jurisdiction has been given by the constitution, but the procedure, or means of calling for or exercising such jurisdiction, has not been provided by the legis

in the constitution of the United States, see In re Pacific Ry. Com., 32 Fed. Rep. 241, 255, in which it was said: "The judicial article of the constitution mentions cases and controversies. The term 'controversies,' if distinguishable at all from 'cases,' is so in that it is less comprehensive than the latter, and includes only suits of a civil nature. Chisholm v. Georgia, 2 Dall. 431, 432; 1 Tuck. Bl. Comm. App. 420, 421. By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication.

"In Osborn v. U. S., 9 Wheat. 819, the Supreme Court, speaking by Chief Justice Marshall, after quoting the third article of the constitution declaring the extent of the judicial power of the United States, said:

"This clause enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the constitution declares that the judicial power shall extend to all cases arising under the constitution, laws, and treaties of the United States.'

"In his Commentaries on the Constitution, Mr. Justice Story says: 'It is clear that the judicial department is authorized to exercise jurisdiction to the full extent of the constitution, laws, and treaties of the United States, whenever any question respecting them shall assume such a form that the judicial power is capable of acting upon it. When it has assumed such a form, it then becomes a case; and then, and not till then, the judicial power attaches to it. A case, then, in the sense of this clause of the constitution, arises when some subject touching the constitution, laws, or treaties of the United States is submitted to the courts by a party who asserts his rights in the form prescribed by law.'

"And Mr. Justice Story refers in a note to the speech of Marshall on the case of Robbins, in the house of representatives before he became chief justice, which contains a clear statement of the conditions upon which the judicial power of the United States can be exercised. His language was:

666

By extending the judicial power to all cases in law and equity, the constitution has never been understood to confer on that department any political power whatever. To come within this description, a ques

lature, the court may provide for such procedure by its own rules.'

Where power is given by the constitution to issue certain writs, the office of which is well defined at common law, the legislature can not change the objects for which such writs may be issued, and thereby change the constitutional jurisdiction of the court.2

Jurisdiction conferred by the constitution is not exclusive, unless made so in express terms, and, therefore, while the jurisdiction thus given can not be taken away by the legislature, it may be conferred by statute upon another court concurrently with the one exercising constitutional jurisdiction.3

67. PROBATE JURISDICTION.-Formerly, jurisdiction of matters growing out of the administration of estates of deceased persons in England belonged to the county courts, then to the ecclesiastical courts, and courts of chancery, and later to the probate courts, strictly probate jurisdiction being vested in the county courts, and later in the ecclesiastical courts. But the jurisdiction of the ecclesiastical courts was confined to wills of personal property. And now the entire jurisdiction growing out of the settlement of estates is vested in the supreme court, the probate court being merged in that court under the probate, divorce, and admiralty division.?

tion must assume a legal form for forensic litigation and judicial decision. There must be parties to come into court, who can be reached by its process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit.'”

1

Post, sec. 88; People v. Jordan, 65 Cal. 644; 4 Pac. Rep. 683.

2 Post, sec. 81; Camron v. Kenfield, 57 Cal. 550.

3 Ante, sec. 24.

Perris v. Higley, 20 Wall. 375; Green v. Creighton, 10 S. & M. (Miss.) 159; 48 Am. Dec. 742, 749, note; Sneed v. Ewing, 5 J. J. Mar. (Ky.) 460; 22 Am. Dec. 41.

5 Townsend v. Townsend, 4 Cold. (Tenn.) 70; 94 Am. Dec. 184; Apperson v. Cottrell, 3 Porter (Ala.), 51; 29 Am. Dec. 239.

Buchanan ". Matlock, 8 Humph. (Tenn.) 390; 47 Am. Dec. 622; Sneed v. Ewing, 5 J. J. Mar. (Ky.) 460; 22 Am. Dec. 41. 7 Ante, sec. 3; Foulke's Ac. in Sup. Ct. 18, 38.

In this country, probate jurisdiction is vested by law in different courts in the different states. In some, probate courts are still maintained; in some, this jurisdiction is vested in county courts; in others, in district courts; in others, in surrogate courts; in others, in common pleas courts; in some, the courts exercising general jurisdiction in common law and equity cases are vested with the powers of probate courts, and in some of the states the jurisdiction is still retained by the court of chancery in part. But at the present day the jurisdiction of courts, and the procedure in probate matters, are almost entirely regulated and controlled by constitutional and statutory provisions, and do not depend upon the modes of proceeding in the ecclesiastical courts of England. And in most of the states, the jurisdiction given to probate courts is much more broad and ample than the powers of the ecclesiastical courts. And where probate jurisdiction is vested

1 Stimson Am. Stat. Law, p. 119, sec. 556; Perris v. Higley, 20 Wall. 375; In re Burton, 93 Cal. 459; 29 Pac. Rep. 36; Pennie v. Roach, 94 Cal. 515; 29 Pac. Rep. 956; 30 Pac. Rep. 106; Green v. Creighton, 10 S. & M. (Miss.) 159; 48 Am. Dec. 742, 744, note; Apperson v. Cottrell, 3 Porter (Ala.), 51; 29 Am. Dec. 239.

"The jurisdiction over the probate of wills and granting administrations is peculiar. It was derived from the civil law through the ecclesiastical courts of England, and was granted by the province charter to the governor and council, who appointed judges of probate in the different counties as their delegates, from whom an appeal lay to them; and this appellate power was continued in the governor and council after the establishment of the state constitution until the end of the Revolution, when it was transferred to this court, still, however, keeping the probate jurisdiction distinct from those of common law and equity: Anc. Chart. 32; Governor Pownall's Message to his Council in 1760, Quincy, 573; Constitution of Massachusetts, c. 3, sec. 5; Stats. 1783, c. 46; Peters v. Peters, 8 Cush. 540-542. The jurisdiction of courts of probate in Massachusetts, differing in this respect from those of England and of some other states, includes wills of real estate as well as of personal property: Anc. Chart. 32; Laughton v. Atkins, 1 Pick. 549, and cases cited; R. S., c. 62, sec. 32, and commissioners' note; Gen. Stats., c. 92, sec. 38." Waters v. Stickney, 12 Allen, 1; 90 Am. Dec. 122.

2" We may admit the correctness of this doctrine as applied to a similar proceeding in the ecclesiastical courts of England, whose powers and jurisdictions are restricted to much narrower limits than the au

in courts of general jurisdiction, it is usually held that proceedings in probate must be treated as distinct from its law and equity jurisdiction, and as if it were a separate and distinct court of probate. And in many of the states, the jurisdiction given to probate courts is made exclusive.2

In almost if not quite all of the states, other than probate jurisdiction is granted to courts exercising the latter, so that it may be said that there is no court in any of the states exercising probate jurisdiction only, and therefore no probate courts, except in name, really exist. This is of little consequence, however, as respects the question of jurisdiction, for the reason that the question is the same, as to the powers of the court, respecting its probate jurisdiction, whether it is in fact a probate court or some other court exercising probate jurisdiction.

The standing of such courts, whether courts of special and inferior or of general and superior jurisdiction, as re-. spects, particularly, the presumptions that will or will not be indulged in favor of their jurisdiction, has been a matter of no little controversy.3

It is generally held that they are courts of limited juris

thority and jurisdiction of the courts of probates in this state. In the absence of statutory directions. it is found convenient to adopt the modes of proceeding observed by those courts. But in questions concerning the jurisdiction of the courts of probates, we do not refer to the ecclesiastical courts of England as an authoritative standard. The constitution of the state is the common source of the authority and powers of all our courts; and hence, in all questions in regard to the extent of their respective jurisdictions, must determine the controversy. The jurisdiction of the courts of probates over the estates of decedents was intended by the constitution to be full and ample, and has by this court been uniformly held to be, in the main, exclusive." McWillie v. Van Vacter, 35 Miss. 428; 72 Am. Dec. 127, 128.

'Lucich v. Medin, 3 Nev. 93; 93 Am. Dec. 376.

McWillie v. Van Vacter, 35 Miss. 428; 72 Am. Dec. 127; Linsenbigler v. Gourley, 56 Pa. St. 166; 94 Am. Dec. 51; Townsend v. Townsend, 4 Cold. (Tenn.) 70; 94 Am. Dec. 184; Gaines v. Smiley, 7 S. & M. (Miss.) 53; 45 Am. Dec. 295.

3 Ante, secs. 6, 7, 23, 25; Schultz v. Schultz, 10 Grattan, 358; 60 Am. Dec. 335. 353, note.