party is confined to the recovery of money or specific real or personal property, whether his cause of action arises ex contractu or ex delicto, and no cause of action arises until the wrong complained of has been committed.'

The jurisdiction of a court of equity is in great measure preventive in its nature. It not only has jurisdiction to prevent a party from doing a wrongful act to the injury of another, but it may compel him to do what is right instead of giving the other party concerned relief in damages for his failure to do so. The jurisdiction of the common law courts were exercised in certain well known common law actions. These fixed actions measured and prescribed the limits of their jurisdiction. It was mainly the inadequacy of the remedies thus administered that brought courts of equity into existence and gave rise to the vast and important jurisdiction these courts exercise at the present day. The jurisdiction of the equity courts can not be ascertained and stated with as much accuracy and precision as that of the common law courts, because it can not be done by a mere reference to the particular kinds of actions, maintainable therein, by name. But some of the principal cases or suits of exclusive equitable jurisdiction may be mentioned, viz.: To compel the rescission, cancellation, or delivery up of agreements, securities, or deeds; to reform written instruments and to correct mistakes therein; for specific performance of contracts, awards, and the like; to rescind contracts; to set aside conveyances made to defraud, hinder, or delay creditors; to probate or contest wills; for injunctive relief; to foreclose or redeem mortgages; interpleader; to enforce vendors' or other liens on lands; to establish or enforce trusts; seeking the construction of wills and the enforcement of trusts under them; actions for divorce or to nullify or affirm marriages; to compel an election between inconsistent rights or claims; to marshal assets or securities; for dissolution of partnership, and to settle accounts of same; to compel payment of lost bills of exchange or promissory notes, negotiable

by delivery merely; to quiet title to real estate; to review judgments or decrees, subrogation, and substitution. To these may be added what is sometimes termed the assistant jurisdiction of courts of equity, which is exercised by bill of discovery, by the examination of witnesses de bene esse, or out of the jurisdiction of the court, and by the perpetuation of testimony.2

In chancery, jurisdiction is divided into ordinary, wherein. the common law is observed, and extraordinary, that of equity and good conscience, and the court of chancery into two tribunals, one with ordinary and the other with extraordinary jurisdiction.3

These two jurisdictions were originally administered in England in separate and distinct courts."

This gave rise to conflicts of jurisdiction and complications that have, to a great extent, been modified and avoided by vesting both legal and equitable jurisdiction in the same courts, and by making the procedure the same whether the cause of action be legal or equitable. This has been done in England by the adoption of the judicature acts, which vest the whole jurisdiction in one court."

It is true, as we have shown elsewhere, that the legal and equitable jurisdiction of this one court is kept separated by the separation of the court into divisions corresponding to the old common law and equity courts with jurisdiction in such divisions similar to the former courts of the same name, but the court is still but one court, with

11 Work's Ind. Prac. & Pl., sec. 827. In a note to Cooley's Blackstone, Book 3, p. 426, the general heads of equity jurisdiction are said to include: frand, accident, mistake, account, infants, lunatics, imbeciles, etc., married women, specific performance, foreclosure of mortgage, dower, partition, interpleader, trusts, bills of peace, bills quia timet, and injunction. See also the introduction to Adams' Equity for a clear and precise statement of the jurisdiction of courts of equity.

3

5

Post, sec. 18; Bouv. Law Dic., title, Jurisdiction.

Anderson's Dic. of Law, 164, 581.

18 Am. Law Rev. 575.

Ante, sec. 3; 18 Am. Law Rev. 575, 582; 25 Am. Law Rev. 1; Wil

son's Jud. Acts, 2, sec. 3.

6 Ante, sec. 3.

jurisdiction over all classes of cases, and with power to administer all of the remedies that might have been administered by the several courts consolidated into it, and the only effect of bringing an action in the wrong division of the court is that it may be ordered transferred to the proper division.1

In the several states in this country which have adopted codes it is provided, in express terms, that the distinction between actions at law and suits in equity are abolished, and a single action, denominated a civil action, is provided for in their stead. And the several actions known to the common law and equity practice being thus consolidated into one, jurisdiction over all of them is vested in one and

In an article in the American Law Review, by Mr. Tempany, it is said: On looking at the jurisdiction of the several divisions, it may very possibly be said that as each division possesses a peculiar and apparently exclusive jurisdiction, the alterations endeavored to be effected by the judicature acts can scarcely be looked upon in the light of consolidation. But it must be borne in mind that the consolidation sought to be effected is rather the fusion of law and equity rather than of the courts of common law and chancery, and though the latter courts may be said still virtually to exist in the names of the chancery division' and the 'queen's bench division,' it must be observed that such a thing as a 'court of equity' no longer continues, the queen's bench division being now just as much a court of equity as the chancery division itself; and it is in this respect that the greatest fusion has taken place. Now a plaintiff is left entirely free to choose the division of the court in which he will bring his action, provided that it does not fall within the category of those assigned to a particular division; and even though, by mistake, he assigns his action to a wrong division, the worst that can befall him is to have it transferred, in the stage at which it is found, to the division in which by right it should have been brought, and it is quite within the discretion of a judge not even to transfer it, but to allow the action to proceed in the division in which it has been commenced. Convenience is the sole object of assigning special business to each division, and exclusive jurisdiction in that business is not thereby given to the particular division. It would therefore be quite erroneous to say that the power to decree specific performance, partition or redemption, or foreclosure of mortgages, was exclusively within the jurisdiction of the chancery division, for all the other divisions have the same power in an equal degree. Law and equity are now concurrently administered, and equity prevails in all cases where the rules of law and equity conflict." 18 Am. Law Rev. 584.

2 Pom. Rem., sec. 28.

the same court, and the procedure generally is the same whether the action would formerly have been one at law or in equity.1

Perhaps the most material distinction maintained in most of the states between common law and equity actions is as to the manner in which each shall be tried, the right of trial by jury being continued in common law cases and denied in those formerly cognizable in courts of equity.

In many cases the jurisdiction of the law and equity courts were concurrent, the only distinguishing feature being the remedy to be administered.2

Besides, the provisions of the codes abolishing the distinction between legal and equitable actions, many of the actions that were formerly cognizable in courts of equity have ceased to be distinctively equitable and become statutory. This may be said of actions for partition, for divorce, the settlement and protection of the estates of infants, lunatics and others, which are governed entirely by positive statutory provisions. Being provided for and regulated entirely by statute, and administered in and by courts exercising general jurisdiction of all actions and special proceedings of whatever nature under the same form and procedure, except as the same are varied and controlled by statute, they are no longer looked upon or treated as equitable in their nature for any purpose. As to such equitable remedies as injunction, specific performance, and the like, they are as much equitable suits now as they ever were, so far as matter of substance is concerned, but they are not distinguishable, in the code states, in matters of form, or as respects the courts by which they are to be administered, from common-law actions.

The equitable jurisdiction of discovery, the perpetuation of testimony and the like, once so important, has been almost entirely superseded by simple and effectual statutory provisions for the taking of the testimony of parties and witnesses in advance of the trial, and in advance of the 21 Work's Ind. Pr. & Pl., sec. 826.

Pom. Rem., sec. 28.

commencement of the suit, and in some of the states, for the submission of interrogatories by one of the parties to a suit to be answered by the other under oath to be used as evidence at the trial. There are other subordinate divisions of jurisdiction applicable to both of these classes. They are original and appellate, exclusive and concurrent, general and inferior or special, of the subject-matter and of the person, assistant and consultative and territorial.'

It is usually held that courts of record, unless it is otherwise provided by law, have common law jurisdiction.'

"The term common law jurisdiction is capable of no other meaning than jurisdiction to try and decide causes which were cognizable by the courts of law, under what is known as the common law of England. Our judicial system having been modeled chiefly after that of England, we have adopted the nomenclature which prevailed in her courts.”3

10. How JURISDICTION CONFERRED AND REGULATED.-Jurisdiction is conferred and regulated in this country almost exclusively by the constitution of the United States and acts of congress, in case of the federal courts, and by the consti

"Jurisdiction is original when it is conferred on the court in the first instance, which is called original jurisdiction; or it is appellate, which is when an appeal is given from the judgment of another court. Jurisdiction is also civil where the subject-matter to be tried is not of a criminal nature; or criminal where the court is to punish crimes. Some courts and magistrates have both civil and criminal jurisdiction. Jurisdiction is also concurrent, exclusive, or assistant. Concurrent jurisdiction is that which may be entertained by several courts. It is a rule that in cases of concurrent jurisdiction that which is first seized of the case shall try it to the exclusion of the other. Exclusive jurisdiction is that which has alone the power to try or determine the suit, action, or matter in dispute. Assistant jurisdiction is that which is afforded by a court of chancery in aid of a court of law; as, for example, by a bill of discovery, by the examination of witnesses de bene esse, or out of the jurisdiction of the court; by the perpetuation of the testimony of witnesses and the like." Bouv. Dic., title, Jurisdiction; 12 Am. & Eng. Enc. of Law, 251.

In the matter of Conner, 39 Cal. 98; 2 Am. Rep. 427; Ex parte Gladhill, 8 Metc. 168. As to what are courts of record, see ante secs. 6, 7. In the matter of Conner, 39 Cal. 100; 2 Am. Rep. 427.