III. OF PROVISIONAL REMEDIES.

26. Proceedings before judgment or decree, in courts exercising equity powers, to provide for the safety and preservation of property in the possession of an adverse party, or to preserve it during the pendency of an appeal, by the appointment of a receiver or other like officer, and, in some cases, the disposition of the property after judgment or decree, and also restraining orders or injunctions pending the action, which, though now regulated by statute in most of the States, existed independently of it, as a necessary incident to equitable jurisdiction. These proceedings, however, so far as they are defined or regulated by statute, as well as others created by the statute, are usually called "provisional remedies."

The provisional remedies created by the statute, or which have been adopted from the common law, are intended to secure in advance the enforcement of the judgment which is sought to be obtained. Of these, arrest and bail, attachment of the defendant's property, and replevin or claim and delivery, are familiar examples. These provisional remedies will be treated of in connection with the actions in which they may be resorted to.

CHAPTER II.

JURISDICTION.

1. Jurisdiction is the power to hear and determine a cause: 6 Peters' U. S. 691, 709; 2 How. U. S. 319, 338; C. P. R. R. Co. v. Placer Co., 43 Cal. 365. In a more general sense the power to make law; the power to legislate or govern; the power or right to exercise authority: 1 Burr. 113.

2. Each branch of government has its functions assigned, and is beyond the control of the other departments of government: Parsons v. Tuol. Co. Wat. Co., 5 Cal. 43. Thus, legislative functions cannot be exercised by the judiciary: People v. Town of Nevada, 6 Cal. 143; approved in Colton v. Rossi, 9 Id. 599; Stone v. Elkins, 24 Id. 127; People v. Sanderson, 30 Id. 167. Nor can the courts of justice interfere with the political powers of the legislature: Nougues v. Douglass, 7 Cal. 65, cited in McCauley v. Brooks, 16 Id. 43; Napa Valley R. R. Co. v. Napa Co. 30 Id. 435..

JURISDICTION IN GENERAL.

3. The jurisdiction of a court will generally be presumed in the case of superior courts, or courts of general jurisdiction, where the want of it does not appear upon the face of the record: Nelson v. Lemon, 10 Cal. 50; Nelson v. Mitchell, Id. 93; Johnson v. Sepulveda, 5 Id. 149; Grewell v. Henderson, 7 Id. 290; Gray v. Hawes, 8 Id. 562; Carpentier v. Oakland, 30 Id. 439, approved in Hahn v. Kelly, 34 Id. 391, which authority cites Forbes v. Hyde, 31 Id. 342; Sharp v. Daugney, 33 Id. 505; Clark v. Sawyer, 48 Id. 133.

4. Where jurisdiction is limited by the constitution or by statute, the consent of parties cannot confer it upon the court: Gray v. Hawes, 8 Cal. 562. But where the limit regards certain persons, they may, if competent, waive their privilege, and thus confer jurisdiction. Id.

5. So the agreement of parties cannot operate to divest a court of its jurisdiction: Muldrow v. Norris, 2 Cal. 74. Nor confer jurisdiction: Norwood v. Kenfield, 34 Id. 329; Bates v. Gage, 40 Id. 183.

6. A decided distinction exists between the want of jurisdiction and jurisdiction irregularly acquired. In the first case, the judgment can be attacked in any form directly or collaterally; in the second, only by direct proceeding in the court which rendered it: Whitwell v. Barbier, 7 Cal. 64, approved in Peck v. Strauss, 33 Id. 685.

AT CHAMBERS.

7. The general rule is, that all judicial business must be transacted in court, and that there must be some express warrant of the statute to authorize any of it to be transacted at chambers: Larco v. Casaneuava, 30 Cal. 560, affirmed in Norwood v. Kenfield, 34 Id. 332.

8. A judge at chambers has no power to make an order directing the clerk of his court to enter in the minutes of the court, nunc pro tunc, an order alleged to have been. made in open court: Hegeler v. Henckell, 27 Cal. 491. Nor to make an order setting aside an execution issued on a judgment, and perpetually staying the enforcement of the same: Bond v. Pacheco, 30 Cal. 530, affirmed in Norwood v. Kenfield, 34 Id. 332. Nor to entertain motions to strike out pleadings or parts of pleadings: Larco v. Casaneuava, 30 Id. 560, affirmed in Norwood v. Kenfield, 34 Id. 332.

CONCURRENT JURISDICTION.

9. There is nothing in the nature of jurisdiction which renders it exclusive: Delafield v. State of Illinois, 2 Hill. 164. But, on the contrary, it may be concurrent: Perry v. Ames, 26 Cal. 372, approved in Cariaga v. Dryden, 30 Id. 246; Knowles v. Yeates, 31 Id. 90; and Courtwright v. B. R. and Auburn Wat. and Min. Co., 30 Id. 585.

10. The legislature cannot confer on one court the functions and powers which the constitution has given to another, where that jurisdiction is exclusive: Courtwright v. Bear Riv. and Auburn Wat. Co., 30 Cal. 580.

11. If exclusive jurisdiction be not conferred upon a court by the constitution, then the legislature may confer on other courts the powers and functions which the constitution has conferred on that court: See Perry v. Ames, 26 Cal. 372; see, also, Courtwright v. B. R. and Aub. Wat. Co.,

30 Id. 585. This has been practically demonstrated in American Co. v. Bradford, 27 Cal. 360, cited in Hill v. Smith, 27 Id. 476; 30 Cal. 385; see, also, People v. Davidson, 30 Id. 379; Warner v. Steamer Uncle Sam, 9 Cal. 697.

12. The grant of original jurisdiction in the constitution, to a particular court, of a class of cases, without any words excluding other courts from exercising jurisdiction in the same cases, does not necessarily deprive other courts of concurrent jurisdiction in such cases: Courtwright v. Bear Riv. and Aub. Wat. and Min. Co., 30 Cal. 573.

13. Jurisdiction in rem may exist in several courts at the same time on the same subject: Averill v. The Hartford, 2 Cal. 309, affirmed in Taylor v. Steamer Columbia, 5 Cal. 272; Meiggs v. Scannell, 7 Id. 408; Fisher v. White, 8 Id. 422.

14. The court whose mesne or final process has made the first actual seizure of the thing, must have exclusive power over its disposal and the distribution of the fund arising therefrom, and the judgments of all other courts, when properly authenticated and filed in the court having custody of the fund, must be regarded as complete adjudications of the subject-matter of litigation, and be entitled to distribution accordingly: Russell v. Alvarez, 5 Cal. 48.

15. So an action for the non-delivery of freight may exist in the District Court of the United States contemporaneously with an action for freight-money in a State court, without fear or danger of any collision or clashing of jurisdiction: Russell v. Alvarez, 5 Cal. 48.

16. Courts cannot interfere with the judgments or decrees of other courts of concurrent jurisdiction: Anthony v. Dunlap, 8 Cal. 26, affirmed in Uhlfelder v. Levy, 9 Cal. 614; Revalk v. Kraemer, 8 Id. 66.

17. Courts of equity and courts of law have concurrent jurisdiction in enforcing contribution between co-sureties: Chipman v. Morrill, 20 Cal. 130. The "real difference between courts of equity and courts of law is in the modes of proof, trial and relief. It will generally be found that they harmonize as to principles:" Lubes' Equity Pl. 6. It is a familiar rule that where a court of law can give an adequate remedy, courts of equity will not entertain jurisdiction.

JURISDICTION OF STATE COURTS.

18. State courts have jurisdiction in the following cases, over subject-matter situated within the exclusive control of the United States Government, or over parties, subjects of a foreign government, resident within the State.

19. Assault and Battery.—In an action for assault and battery in a United States navy yard, although the State has ceded exclusive jurisdiction of that place to the United States: Armstrong v. Foote, 11 Abb. Pr. 384; but see Dibble v. Clapp, 31 How. Pr. 420. So, State courts have jurisdiction of crimes committed in the United States military reservation of Fort Leavenworth: Clay v. State, 4 Kansas, 49. The act of the legislature, ceding the navy yard at Brooklyn to the United States-which provides that the cession "shall not prevent the operation of the laws of the State" within the same —has the effect of preserving the jurisdiction of the State over offenses committed on board a government ship in the navy yard, and over the person of the offender: People v. Lane, 1 Edm. 116.

20. Contracts.-State courts have jurisdiction over actions for a contract made in a foreign country: Skinner v. Tinker, 34 Barb. 333. So, in an action on a policy of insurance issued in the State by a resident agent of a foreign insurance company: Burns v. Provincial Insurance Co., 35 Barb. 325; Watson v. Cabot Bank, 5 Sand. 423.

21. Customs and Duties.—Of actions by collectors of United States customs upon receiptor's agreement: Sailly v. Cleveland, 10 Wend. 156; and of actions on bonds given for duties to the United States: United States v. Dodge, 14 Johns. 95.

22. Foreign Governments may sue and be sued in State courts in their federative names: Republic of Mexico v. Arrangois, 11 How. Pr. 1; 2 Abb. Pr. 437; 3 Id. 470; Manning v. State of Nicaragua, 14 How. Pr. 517; Delafield v. State of Illinois, 26 Wend. 192; Burrall v. Jewett, 2 Paige, 134; Gibson v. Woodworth, 8 Id. 132.

23. Foreign Residents.-State courts have jurisdiction in actions against foreign executors or administrators who are residents of the State: Gulick v. Gulick, 33 Barb. 92; 21 How. Pr. 22; Montalvan v. Glover, 32 Barb. 190; Sere v. Coit, 5 Abb. Pr. 482. The courts of New York have no jurisdiction in an action at law against foreign executors or administrators: Metcalf v. Clark, 41 Barb. 45.

24. Habeas Corpus.-To discharge on habeas corpus persons enlisted in the United States army: Re Carlton, 7 Cow. 471; Re Dabb, 12 Abb. Pr. 113; Re Phelan, 9 Id. 286; United States v. Wyngall, 5 Hill, 16; Re Ferguson, 9 Johns. 239. As to jurisdiction by habeas corpus on a commitment by a court of the United States, see Re Barrett, 42 Barb. 479; 1 Johns. Cas. 136; Re Hopson, 40 Barb. 34.

25. Property out of State.-Where jurisdiction of the person is acquired, State courts have equitable jurisdiction in actions respecting real estate, even if the property is situated out of the State: Mussina v. Belden, 6 Abb. Pr. 165; Ward v. Arredondo, Hopk. 213; Shattuck v. Cassidy, 3 Ewd. 152; Slatter v. Carroll, 2 Sandf. Ch. 573; De Klyn v. Watkins, 3 Id. 185;