Open main menu

Page:Harvard Law Review Volume 1.djvu/120

This page has been proofread, but needs to be validated.

dies 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 called in personam because they give relief only against the defendant personally, i. e., 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 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 of the breach of 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 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