siastical, and bankruptcy courts were thus consolidated, the distinction between them, and the jurisdiction formerly exercised by each, was kept separate, in a manner, by conferring upon each of these several divisions, designated by the names of the former courts, the same jurisdiction that was formerly vested in the several courts of like name.' But this division was not necessarily permanent. The right to distribute the causes and matters, coming before the court, to the several divisions of the high court of justice, may be regulated and changed by the judges in council under certain restrictions. In 1880, the common pleas and exchequer divisions were consolidated into the queen's bench division, thus reducing the number of divisions to three. And the business that formerly belonged to the common pleas and exchequer divisions was, by this order, transferred to the queen's bench division.

The greater part of the law relating to the practice and forms of proceeding under the judicature acts will be found in the rules and orders of court. It is provided by one of these rules that the party commencing the action shall indorse on the writ of summons the division of the high court to which it is intended that the action should be assigned. But this is "subject to the exclusive assignment of certain business to each division, being generally such business as the court which it represents exclusively transacted," and subject to the power of the court to transfer business from one division to another.5

These divisions of the court are not separate courts, nor are they so treated in practice. Each of the judges of either of the divisions represents the power and jurisdiction of the supreme court of judicature, and not the particular division of the court in which he may for the time be acting.

"The judges are distributed among the divisions, namely: six to the chancery division, the lord chancellor

1

Sup. Ct. of Jud. Act., pt. 1, sec. 34.

2 Jud. Act, 1873, sec. 32.

Wilson's Jud. Acts, p. 42; Foulke's Ac. in the Sup. Ct. 18. 5 Foulke's Ac. in the Sup. Ct. 19.

* Order 11, 1.

Jud. Act, 1873, sec. 39; Foulke's Ac. in Sup. Ct. 19.

being president; fifteen to the queen's bench division, the lord chief-justice of England being president; and two to the probate, divorce, and admiralty division, the senior judge being president. The business of each division, important enough to be brought before several judges, is in general transacted by a divisional court composed of judges belonging to that division; but there is nothing to prevent à divisional court, composed, for instance, of judges of one division, entertaining questions arising in a cause assigned to another division, except that so far as practicable one judge of the division to which the cause is assigned is to be of the divisional court which adjudicates upon it."

4. COMMON LAW AND EQUITY COURTS, IN THE UNITED STATES.-We have in this country a system of federal courts and a separate and distinct system of courts in each of the states. It is not the purpose, in this connection, to attempt to designate by name, or in any other way, the various courts of common law and equity jurisdiction in the several states.?

In those states which have adopted the code system of practice, the courts of general original jurisdiction are much the same, although they are differently named. In some of the states they have circuit courts, in others district courts, in others superior courts, in others supreme courts; in some they have both circuit courts and superior courts, or district and superior courts, and in some the court of common pleas still exists. There are, of course, other courts having special and inferior jurisdiction, espe cially in probate matters. But in many of the states there is but one court of general original jurisdiction, which takes cognizance of all business, civil, criminal, and probate.

'Foulke's Ac. in Sup. Ct. 19. A very interesting description and history of the courts of England, by Elliott Anthony, will be found in the Am. Law Review, vol. 25, page 1.

2 A very full description of the courts of this country, and a general statement of their jurisdiction, will be found in Stimson's Am. Statute Law, sec. 550 et seq.

There are very few of the states, at the present day, in which there is a division of courts into common law and equity courts, but in some the distinction between common law and equity practice is preserved, and the law and equity courts are still maintained.1

The distinction between common law and equity is still maintained under the federal practice, but both common law and equitable remedies are administered by the same courts, these courts having their law and equity sides. The principal federal courts of general original jurisdiction are the circuit and district courts, both of which exercise both law and equity jurisdiction.❜

The supreme court has original jurisdiction, to a limited extent, both at law and in equity. And the same is true of the court of claims.1

5. MILITARY AND MARITIME COURTS.-The court of chivalry, of England, had "cognizance of contracts touching deeds of arms or of war, out of the realm, which could not be determined or discussed by the common law, together with other usages and customs to the same matters appertaining." It was almost entirely a "court of honor," and was of but little consequence.

The maritime and admiralty courts of England had jurisdiction to try and determine all maritime causes, or causes arising wholly upon the sea, and not within any county. By the judicature acts this court has been merged in the high court of justice.7

In this country the greater part of the maritim jurisdiction belongs, of necessity, to the federal courts. We have no state maritime courts, or military courts of civil jurisdiction-except in some of the states maritime courts.

1 Harris v. Vanderveer's Ex., 21 N. J. Eq. 424.

1 Rev. Stat. U. S., secs. 563, 629; Foster's Fed. Prac., p. 20, sec. 13; p. 21, sec. 15; p. 34, sec. 25.

Rev. Stat. U. S., sec. 687;

Foster's Fed. Prac., p. 20, sec. 14.

4 Rev. Stat. U. S., sec. 1059; Foster's Fed. Prac., p. 20, sec. 13.

are established in certain cities. The maritime jurisdiction of the federal courts belongs mainly, but not wholly, to the district court.'

6. COURTS OF RECORD AND COURTS NOT OF RECORD.-The question as to what is necessary to constitute a court of record has never been satisfactorily answered. Many tests have been laid down in an effort to distinguish between a court of record and one not of record, but none of these tests have been received and acted upon as conclusive or satisfactory.

Blackstone's definition of a court of record is: "A court of record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony." This is the generally received idea of a court of record. The definition here given is implied in the name of the court. But this definition has been condemned by the courts in modern days as being wholly inaccurate.3

Another of the tests applied to courts of record was the possession of the right to fine and imprison for contempt; but it has been determined that every court of record does not possess this power. In many of the decided cases the extent of the jurisdiction of a court, or whether it be a court of superior or inferior jurisdiction, is made the test."

1 Rev. Stat. U. S., sec. 563, sub. 8.

3 Blk. Com. 24; Anderson's Dic. of Law, 275.

31 Cent. Law Jour. 86.

In Hahn v. Kelly, 34 Cal. 391, 422 (94 Am. Dec. 742), the court said: "At common law, ‘a record signifies a roll of parchment upon which the procee ungs and transactions of a court are entered or drawn up by its officers, and which is then deposited in its treasury in perpetuam rei memoriam.' (3 Steph. Com. 583; 3 Blk. Com. 24; 2 Burr. Law Dic., tit. Record.) 'A court of record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the records of the court, and are of such high and super-eminent authority that their truth is not to be called in question.' In courts not of record the proceedings are not enrolled. The privilege of having these enrolled memorials constitutes the great leading distinction, in English and American law, between courts of record and courts not of record, or, as they are frequently designated, superior and inferior courts. In the United States paper has univer

The question whether courts of justices of the peace are or are not courts of record has frequently arisen, and upon this, as upon almost every branch of the subject, the decided cases are conflicting.'

It will be seen that in some of the cases cited it is held that if the law of the state in which the court is situated requires it to keep a record, it should be regarded as a court of record. In others, the fact that such a court has no clerk to keep its records is conclusive against its being a court of record. But this does not seem to be a sufficient reason for excluding it from this class of courts. Where the justice is required to keep a record, and no clerk is provided, he becomes his own clerk, and no good reason appears for holding that the want of a clerk can change the character of the court.

It is sometimes held, with reference to courts of justices of the peace and other inferior courts, that they are not courts of record because they derive their authority from statute, and do not proceed according to the course of the common law.2

In many of the decided cases the common law is invoked to determine the dignity of the court, it being held

sally supplied the place of parchment as the material of the record, and the roll form has, on that account, fallen into disuse; but in other respects the forms of the English records have, with some modifications, been generally adopted.' (Burr. Law Dic., tit. Record.) But whether in parchment or in paper, in the roll form or otherwise, this judgment roll is what is known in law as the record-the technical record—and is what is meant by courts and law writers when they speak of records of superior courts or courts of record."

1 Following are some of the cases in which a justices court is held to be a court of record: Fox v. Hunt, 12 Conn. 491; 31 Am. Dec. 760; Hooker . The State, 7 Blkf. (Ind.) 272; Draggoo v. Graham, 9 Ind. 212, 214; Pressler v. Turner, 57 Ind. 56. And the following cases are to the contrary: Snyder v. Wise, 10 Pa. St. 157; Cox v. Groshong, 1 Pin. (Wis.) 307, 311.

2 In Snyder v. Wise, 10 Pa. St. 157, 158, the court say, after reviewing the authorities: "But the sounder opinion is that the courts of justices of the peace are not courts of record. They do not proceed according to the course of the common law, but derive their authority wholly from statute, and must, therefore, like all other inferior tribunals, show it in every instance." Anderson's Dic. of Law, 275. See post, sec. 25.