[REFERENCES ARE TO THE PAGES.]

Van Hoosier v. H. & St. J. Ry. Co., Wiede v. Porter, 22 Minn. 429: 460.

LIBRA

CASES ON CODE PLEADING

CHAPTER I.

NATURE AND FORMS OF ACTIONS.

PRELIMINARY NOTE.

"It is because rights exist and because they are sometimes violated, that remedies are necessary. The object of all remedies is the protection of rights. Rights are protected by means of actions or suits. The term "remedy" is applied either to the action or suit by means of which a right is protected, or to the protection which the action or suit affords. An action may protect a right in three ways, namely, by preventing the violation of it, by compelling a specific reparation of it when it has been violated, and by compelling a compensation in money for a violation of it. The term "remedy" is strictly applicable only to the second and third of these modes of protecting rights; for remedy literally means a cure,-not a prevention. As commonly used in law, however, it means prevention as well as cure; and it will be so used in this paper. In equity the term "relief" is commonly used instead of "remedy"; and though relief is a much more technical term than remedy, it has the advantage of being equally applicable to all the different modes of protecting rights.

"Though remedies, like rights, are either legal or equitable, yet the division of remedies into legal and equitable is not coordinate with the corresponding division of rights; for, though the remedies afforded for the protection of equitable rights are all equitable, the remedies afforded for the protection of legal rights may be either legal or equitable, or both.

"Actions are either in personam or in rem. Actions in personam are founded upon torts, actual or threatened, or upon breaches of personal obligations, actual or threatened. They are

ralled in personam because they give relief only against the defendant personally, i. e., that is the plaintiff has no claim to or against any res. Actions in rem are founded upon breaches of 'real obligations, or upon the ownership of corporeal things, movable or immovable. Actions founded upon breaches of real obligations are called in rem, because they give relief only against a res. Actions founded upon the ownership of corporeal things are called in rem, because the only relief given in such actions, is the possession of the things themselves. Actions in rem, as well as actions in personam, are (except in admiralty) in form against a person. The person, however, against whom an action in personam is brought, is fixed and determined by law; namely, the person who incurred (and consequently the person who broke or threatened to break) the obligation, or the person who committed or threatened to commit the tort, while the person against whom an action in rem is brought is any person who happens to be in the possession of the res, and who resists the plaintiff's claim. The relief given in actions in personam may be either the prevention or the specific reparation of the tort, or the breach of the obligation, or a compensation in money for the tort or for the breach of obligation. The relief given in an action in rem, founded on the breach of a real obligation, is properly the sale of the res, and the discharge of the obligation out of the proceeds of the sale. The relief given in an action in rem, founded on the ownership of a corporeal res, is the recovery of the possession of the res itself by the plaintiff.

"Actions in rem founded upon ownership are anomalous. As every violation of a right is either a tort or a breach of obligation, it would naturally be supposed that every action would be founded upon a tort or breach of an obligation, actual or threatened; and if this were so, the only actions in rem would be those founded upon breaches of real obligations. But when a right consists in the ownership of a corporeal thing, a violation of that right may consist in depriving the owner of the possession (and consequently of the use and enjoyment) of the thing. If such a tort had the effect of destroying the owner's right, as the physical destruction of the thing would, it would not differ from other torts in respect to its remedy; for the tort feasor would then become the owner of the thing, and its former owner would recover its value in money as a compensation for the tort. And by our law, in case of movable things, the tort often has the effect practically of destroying the owner's

rights, sometimes at his own election, sometimes at the election of the tort feasor. But, subject to that exception, the tort leaves the right of the owner untouched, the thing still belonging to him. He can, indeed, bring an action for the tort, and recover a compensation in money for the injury that he has suffered down to the time of bringing the action; but the compensation will not include the value of the thing, as the thing has not in legal contemplation, been lost. If, therefore an action for the tort were the owner's only remedy, he must be permitted to bring successive actions ad infinitum, or as long as the thing continued to exist; for in that way alone could he obtain full compensation for the injury which he would eventually suffer. But, as the law abhors a multiplicity of actions, it always enables the owner to obtain complete justice by a single action, or at most by two actions. Thus, it either enables him to recover the value of the thing in an action for the tort, by making the tortfeasor a purchaser of the thing at such a price as the jury shall assess, or it enables him to recover the possession of the thing itself in an action in rem. He is, however, further entitled to recover the value of the use and enjoyment of the thing during the time that the defendant has deprived him of its possession, together with a compensation for the injury which the thing itself may have suffered while in the defendant's possession; and this, he recovers sometimes in the same action in which he recovers the thing itself or its value, and sometimes in a separate action.

"It seems, therefore, that an action in rem, founded upon ownership, may be regarded as a substitute for an infinite or an indefinite number of actions founded upon the tort of depriving the plaintiff of the possession of the res, which is the subject of the action; and that such an action may, therefore, be regarded as in a large sense founded upon the tort just referred to, and the recovery of the thing itself as a specific reparation of that tort.

"Thus far, in speaking of actions and remedies, it has been assumed that the law of any given country is a unit; i. e., that there is but one system of law in force by which rights are created and governed, and also but one system of administering justice. Whenever, therefore, any given country has several systems, whether of substantive or remedial law, what has been thus far said is intended to apply to them all in the aggregate,not to each separately. Thus, in English speaking countries