US SUPREME COURT DECISIONS

1. The practice, pleadings, and forms and modes of proceeding of the territorial courts, as well as their respective jurisdictions, were intended by Congress to be left to the legislative action of the territorial assemblies and to the regulations which might be adopted by the courts themselves. In case of any difficulties arising out of this state of things, Congress has it in its power at any time to establish such regulations on this, as well as on any other subject of legislation, as it shall deem expedient and proper.

2. The cases of Noonan v. Lee, 2 Black 499, Orchard v. Hughes, 1 Wall. 77, and Dunphy v. Kleinsmith, 11 Wall. 610, reconsidered and not approved.

The Seventh Amendment to the Constitution ordains:

"In suits at common law, where &c., the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined than according to the rules of the common law."

An early statute of the United States, the statute commonly known as the Process Act of 1792, [Footnote 1] an act still in force, enacts:

"That the forms of writs, executions, and other process, . . . and the forms and modes of proceeding in suits:"

"In those of the common law shall be the same as are now used in the said courts, respectively, in pursuance of the act entitled 'An act to regulate processes in the courts of the United States.' "

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"In those of equity and in those of admiralty and maritime jurisdiction, according to the principles, rules, and usages which belong to courts of equity and to courts of admiralty respectively, as contradistinguished from courts of common law, except so far as may have been provided for by the act to establish the judicial courts of the United States, subject, however, to such alterations and additions as the said courts respectively shall, in their discretion, deem expedient, or to such regulations as the Supreme Court of the United States shall think proper, from time to time, by rule, to prescribe to any circuit or district court concerning the same."

In this state of fundamental and of statutory law, Congress, on the 26th of May, 1864, [Footnote 2] passed "An act to provide a temporary government for the Territory of Montana." It enacted:

"SECTION 6. The legislative power of the territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act."

"SECTION 9. The judicial power of said territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace. . . . The jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts, . . . shall be limited by law. Provided . . . that the said supreme and district courts, respectively, shall possess chancery as well as common law jurisdiction."

"SECTION 13. The Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within the said Territory of Montana as elsewhere within the United States."

The territory being organized, its legislative assembly, in December, 1867, passed a "Civil Practice Act" containing these provisions:

"SECTION 1. There shall be in this territory but one form of civil action for the enforcement or protection of private rights and the redress or prevention of private wrongs. "

Page 85 U. S. 650

"SECTION 2. In such action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant."

"SECTION 38. The only pleadings on the part of the plaintiff shall be the complaint, demurrer, or replication to the defendant's answer, and the only pleadings on the part of the defendant shall be a demurrer to the complaint, or a demurrer to the replication, or an answer to the complaint."

"SECTION 155. An issue of fact shall be tried by a jury unless a jury trial is waived or a reference be ordered, as provided in this act."

In this state of things, Toombs brought an action against Hornbuckle in a district court of the Territory of Montana for damages caused by the diversion of a stream of water, by which his farm was deprived of irrigation, and for an adjudication of his right to the stream and an injunction against further diversion. The action was framed and conducted in accordance with the practice as established by the legislative assembly of the territory in the provisions last-above quoted.

The case was tried by a jury, who found for the plaintiff, assessed his damage at one dollar, and decided that he was entitled to seventy inches of the water. Upon this verdict the court gave judgment, and awarded an injunction as prayed.

The only errors assigned were based on the intermingling of legal and equitable remedies in one form of action. chanrobles.com-red

Page 85 U. S. 652