er supports it. 2 V. & B. 102, Bliss v. Boscawen, a late decision, after many doubts and variations. In such cases the plt. must revive, or the court may give him leave to amend his bill without prejudice to his injunction. 3 Madd. 475; Eden, 88. In New York an injunction bill, being sworn to by the plt., cannot be amended without leave. 4 John. Ch. R. 434, Parker v. Grant, and Rule 90th. This amendingwithout prejudice is only for good reasons shown. This sound principle of late adopted, is, that the plt. shall put forth his whole strength in his first bill for an injunction, and as Lord Eldon said, the court will not give the plt. 'liberty to split and retail out his equity to apply upon another head for another injunction after the former one is dissolved.' Also where an injunction has been dissolved on the merits upon the answer put in whether by a decree of the court on dismissing the bill, or on motion upon coming in of the answer, or on arguing the merits, as they appear on the oath only of the deft. if the plt. amends that bill, or files a supplementary bill with new matter, which is part of the old cause, he cannot apply of course, for a new injunction to stay proceedings until answer or further order.' Hereon Eden p. 91, observes this doctrine thus clearly and satisfactorily established has been followed in all modern cases; and no injunction which has been once dissolved, can now be revived without special motion, on amendments verified by affidavit.' James v. Downes, 18 Ves. 582; 2 V. & B. 101; Vipan v. Mortlock, 2 Meriv. 479. VOL. VI. Held, where new facts are stated in a supplemental bill, a 4 Johns. Ch. fresh injunction may be awarded on motion, though the former R. 35, Fanning injunction was dissolved on the merits. In case of amendment and to obtain a further injunction to stay proceedings at law two things are essential: 1. That the deft. be in default: 2. The truth of the amended bill must be verified on special motion by affidavit, showing the plt. could not sooner have put the new facts on the record. Nor is this default confined to be in contempt, as once held in the exchequer. 2 Anst. 553; but aliter, 18 Ves. 522, 523; 2 Meriv. 476; see Massie v. Watts, ch. 225, a. 6, s. 2; ch. 226, a. 13. 19. The commission given by George the Third to a vicé admiral in a colony, before the revolution, was a very long instrument of nine or ten printed octavo pages, including many matters on lands and waters, and empowered him to take cogizance of, and proceed in, all civil and maritime causes, and in complaints, contracts, offences, or suspected offences, crimes, pleas, debts, exchange, accounts, charter-parties, agreements, suits, trespasses, injuries, extortions, and de v. Dunham. p. 92. VOL. VI. mands, and business civil and maritime whatever, commenced CH. 186. or to be commenced, between merchants, or between owners Art. 11. and proprietors of ships and other vessels, &c., &c. within Con. his colony,' &c.; also to inquire by the oaths of honest and lawful men of our said' colony, and the territories depending thereon, and the maritime parts of the same and adjoining to them whatsoever, dwelling both within liberties and franchises as without, as well of all and singular such matters and things, which of right, and by the statutes, laws and ordinances, and customs anciently observed, were wont and ought to be inquired after, as wreck of the sea, and all and singular the goods and chattels of whatsoever traitors, pirates, inanslayers, and felons, howsoever offending, within the maritime jurisdiction of our vice-admiralty of our colony of aforesaid, and the territories depending thereon, and of the goods, chattels, and debts of all and singular maintainers, accessaries, counsellors, abettors, or assistants whatsoever.' So of all goods of suicides, their debts, &c. by sea, water, or land in our said colony of' -, &c. forfeited, &c.; so of every kind of forfeiture; so of goods waived, flotsam, jetsam, ligan, and treasures found, or to be found; deodands, derelict goods, &c., &c.; so as to anchorage, lastage, ballast, royal fishes, as sturgeons, whales, porpoises, dolphins, kiggs, and grampusses, and generally of all other fishes whatsoever,' of large bulk or fatness, anciently by right or custom, or any way appertaining or belonging to us,' to arrest, take recognisances, imprison, try, condemn, punish, &c., &c. In this random way the commission ran on several pages further. ́ ́It extended also to all fresh waters,' ports, public streams, riv ers, or creeks, or places overflown whatsoever, within the ebbing and flowing of the sea or high water,' &c. It may have been intended to confine this commission to the admiralty and maritime jurisdiction, but if so intended it clearly included places within the county lines of a colony, as fresh waters, ports, creeks, &c. ; and so vague are the expressions in it, that it was impossible exactly to understand what was meant by maritime jurisdiction. This commission is so far cited to show how many rights, powers, and kinds of property the king claimed in the colonies as belonging to him; also because in this case two very unsettled questions have arisen: 1. How far does the admiralty and maritime jurisdiction extend as to place, persons, or subject matter? 2. In these numerous cases, how far does the federal jurisdiction extend? If we examine the journals of the old congress, from the formation of the Union in 1774, to the adoption of the Federal Constitution, which extends the federal judicial power to all cases of admiralty and maritime jurisdiction,' we shall find but little on these subjects. Nor is much to be found since that constitution was adopted. So far as the doings of the old congress respected maritime matters, they were mainly confined to the cases of captures, considered in chapter 227. When the king ceased to have these rights, they accrued to the thirteen colonies. The difficult question is, what parts of them did accrue to the Union, and what parts to the thirteen colonies individually, now States? There have been scarcely any decisions on the subject. But the natural division seems to have been this-such rights and kinds of property, in these cases, as were and have been found within the county lines in any colony, have accrued. to it, and such of them as have been found without those lines; have accrued to the Union. So it is understood has been, in general, the practice: in each case subject to private claims and rights. Legislation on many of these kinds of property was exercised both by England and the colonies, as wreck, &c. So by the Union and States. See Wreck in the index; see Property Found, &c. ch. 76, art. 7; see Fisheries, Flats, &c. ch. 68. 22. This information does not lie at the suit of an individual, but must be instituted and carried on by and in the name of the State, &c. : 2. It may be filed under the direction of the court: 3. On such information against a person claiming to exercise the office of sheriff, the decision of the managers of the election is conclusive as to all matters legally submitted to them as long as that decision remains unreversed: 4. Such information may be granted against an officer commissioned under the authority of the State. 35. VoL. VI. Con. ART. 16. Con. McCord, 32 Clark, 4 Cow § 23. Decided in this case that the general rules of the The People v. court as to pleadings, amending, &c. are applicable to proceed-en, 95 to 97. ings upon an information in the nature of a quo warranto. Clerk of 97-123. 24. Held, the process on an information in the nature of The People v. a quo warranto, is either a venire facias and distringas, or a sub- Richardson, pana, and attachment: 2. It is irregular to proceed against the Wayne Coun deft. by a rule to appear; the attorney general had proceeded ty, 4 Cowen, to enter an appearance for, and to take a default against the deft. pursuant to a rule obtained on an ex parte application for the purpose, at the last term, as in 3 Cowen's R. 357, s. 6. Moved for the deft. to set the judgment, by default, aside, as one irregular. The mover read an affidavit, shewing that no process had been served; and that he did not know till this term, when he saw the note of the case in 3 Cowen, that the subject had even been mentioned to the court; this was, as said, pursuing a citizen to judgment without due process. The statute 6 Wentw. B. 2; 1 Salk. VOL. VI. authorizing the information, requires the relator to proceed in CH. 186. the manner usual upon such informations, (1 R. L. 108, s. 4,) Art. 16. these were well known to the common law. According to that, Con. the information uniformly prayed process against the deft., and was as above. Bac. Abr. Information D. Com. Dig. quo warranto. Attorney general admitted so is the practice in England. Plead. 28, &c. Judgment by default set aside, and the English practice adopted on argument and advisement first above stated. The court case; 6 D. & held practice without discussion of no binding force. From page 100 to 123, there is in Cowen's notes in twentythree full and fine printed pages, a very extensive collection of cases, Binn. R. 353. English and American, on these informations, quo warranto ; the substance of which are found in this chapter in art. 8 to 16, both included; also a number of cases, not noticed by Mr. Cowen. 374-699, same E. 594; 2 Kyd, on Corp. 404-438; 5 The People, 325. § 25. An information in the nature of a quo warranto lies against ex rel. of Van one intruding into the office of a sheriff in consequence of an Voast v. Van Slyck, 4 unlawful decision of the county board of canvassers in his faCowen, 297-vour convened pursuant to the 10th section of the act for regulating elections passed April 17, 1822, (Sess. 45, ch. 250.) Held, 2. The duties of the board are ministerial, not judicial: 3. A certiorari, therefore, is not the proper remedy; special pleadings at large; some inferior points settled; many cases were cited, but the largest part of them were English. The People, ex rel.of Israel v. Tibbets, and others, 4 Cowen, 358 395. 211. Judgment of ouster, and that the relator recover the costs of the prosecution. $26. This remedy lies against persons who have intruded into the office of directors of an insurance company, or any other corporation; so against those who intrude into any office created for the government of a corporation. So against those who usurp to be a corporation. Not denied because the office is annual. The people v. § 27. Information quo warranto; much special pleadings. Niagara Bank, Important point decided was, that the bank did not forfeit its 6 Cowen, 196-charter by insolvency, and closing their banking operations, as before they were prosecuted by the people, they resumed the payment of their debts. Aliter if prosecuted before, &c.; stopped payment five years; was decided on the act of incorporation. The People r. § 28. Quo warranto, &c. Held, insolvency and refusal to the Washington and War. pay bills, &c. in specie, or other lawful money, &c. are not of ren Bank, 6 themselves, within the act (Sess. 40, ch. 185,) of incorporaCowen, 211-tion of said bank, a ground of such information, or other proceeding to oust them of their corporate rights. Woodworth J. said there must be a total non user to be the ground of forfeiture.' Judgment for the bank. 217. $29. Quo warranto on the like supposed ground of non 571 Con. user, &c. Held, 1. May be against the company as a corpora- VOL. V. tion: 2. The judgment is one seizure: 3. Corporate rights CH. 186. may be forfeited by non user or misuser: 4. To suffer an act Art. 16. to be done that destroys the end and object of the constitution, is equivalent to the surrender of its corporate rights. As where it fails and becomes unable to resume its business; and the peo- The People v. ple may reply such inability generally. Judgment for the the Hudson people, with leave to the bank to withdraw its demurrer, and Bank, 6 Cowjoin issue. See 19 John. 456, Slee v. Bloom. en, 217-220. CHAPTER CLXXXVII. COURTS. 6 con. The civil law is the common law of the European ART. 1. continent; in some degree as modified in each sovereign State, Con. as its own circumstances have required; hence it is, properly, the ground work of their laws. case in England and in the United States. Several principles and So in some degree this is the maxims of the civil law are a part of our State and federal common law, being the old English common law, much modified and ameliorated in England since 1648, and especially, in the thirteen colonies, and in federal America, wherein, and in which time, it has been divested and purged of its old feudal principles, superstitious trials, barbarous punishments, dark age uncertainty, barbarous Latin and French dress, &c. &c. and made to accord, in a good measure, with the present state of civilized society, freedom, knowledge, and good feelings, in federal America. There is more of the civil law mingled in our's, than is usually supposed. The scores of Latin law maxims in this work, taken from the civil law, are but a very small part of such maxims taken from that law and naturalized in our own. There is most clearly enough of the civil law adopted in ours to justify law instructers to teach it very largely. Several important branches of our jurisprudence have their very foundation in the civil law, the more we examine and understand this law, the more we shall find we have adopted it by other names. § 6. What value gives the supreme court of the United ART. 2. States jurisdiction. If the replevin be of goods distrained for Con. rent, the amount for which avowry is made is the value of the 9 Wheat. 627. matter in controversy; and if the writ be issued to try the title to property, it is in the nature of detinue, and the value of the article replevied is the value of the matter in contro versy, so as to give jurisdiction to said court, and it has none pp. 532–537. if such value be less than $1000. In all cases of concurrent |