PART II.

OF COURTS AND THEIR OFFICERS.

CHAPTER I.

OF COURTS GENERALLY.

ARTICLE I.

OF COURTS IN GENERAL.

Section 1. What is a court? An oft repeated and very general definition of a court is that given by Lord COKE- who describes it to be "a place wherein justice is judicially administered." Co. Litt. 58 a; 3 Bl. Com. 24. The term "place," in this definition, must, however, be understood figuratively, for a court is properly composed of persons, consisting of the judge or judges, and other proper officers, united together in a civil organization, and invested by law with the requisite functions for the administration of justice.

A modern definition, in fuller and more explicit terms than those employed by Lord COKE, describes a court "as an organized body with defined powers, meeting at certain times and places for the hearing and decision of causes and other matters brought before it, and, aided in this, its proper business, by its proper officers, viz., attorneys and counsel to present and manage the business, clerks to record and attest its acts and decisions, and ministerial officers to execute its commands and secure due order in its proceedings." Burrill's Dict.

In a more limited sense, the judges alone are sometimes called the court.

The most general distinction between At common law, a

Section 2. General division of courts. division of courts is that which makes the courts of record, and courts not of record. court of record is one 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. Courts not of record comprise those inferior tribunals whose proceedings are not formally enrolled or recorded. 3 Bl. Com. 24. In this country the proceedings of courts of record are written in books kept for the purpose, or in papers kept on file in the offices of the clerks of the courts. A court which does not possess a common-law jurisdiction, and which is without a seal and clerk, is not a court of record. For the more convenient administration of justice, courts of record are divided into a variety of courts, possessing either general or limited jurisdiction. Courts of general jurisdiction, called supreme or superior courts, in some cases have original jurisdiction, while in others their province is to exercise a supervisory power over the acts and proceedings of the inferior courts of limited jurisdiction.

These inferior courts of record have, in general, original jurisdiction of cases both at law and in equity, but, in all cases, their jurisdiction must appear upon the face of their proceedings, otherwise they will be void. Kempev. Kennedy, 5 Cranch, 173. Other general divisions of courts embrace courts of common law and courts of equity; courts of admiralty and maritime jurisdiction; civil and criminal courts; all of which possess some prominent features common to all, but are clearly distinguishable by features peculiar to each.

Section 3. Essentials of every court. At least three constituent parts are essential in every court; the actor or plaintiff, who complains of an injury done; the reus or defendant, who is called upon to make satisfaction for it; and the judex or judicial power, which is to examine the truth of the fact alleged, to determine the law arising upon that fact, and, if any injury appears to have been done, to ascertain, and by its officers to apply the remedy. 3 Bl. Com. 25.

Section 4. The courts of this State. The following is a list of the courts of this State as given by the Code, part I, title I, section 9.

1. The court for the trial of impeachments; 2, the court of appeals; 3, the supreme court; 4, the circuit courts; 5, the courts of oyer and terminer; 6, the county courts; 7, the courts of sessions; 8, the courts of special sessions; 9, the surrogates' courts; 10, the courts of justices of the peace; 11, the superior court of the city of New York; 12, the court of common pleas

Of courts of law.

for the city and county of New York; 13, the mayors' courts of cities; 14, the recorders' courts of cities; 15, the marine court of the city of New York; 16, the justices' courts in the city of New York; 17, the justices' courts of cities; 18, the police courts.

Since the amendment of the above section of the Code in 1849, two additional courts have been established; namely, the city court of Brooklyn, and the superior court of Buffalo; and the designation of No. 16 has been changed from "justices' courts" to" district courts," in the city of New York.

ARTICLE II.

OF COURTS OF LAW.

Section 1. Aula regia. Courts of law are established to protect legal rights and to redress legal injuries; and anciently, under the Saxon constitution, these important ends were sought to be attained by the establishment of but one superior court of justice in the whole kingdom, which had cognizance of spiritual as well as of civil causes. This court was called the wittenagemote or general council, which assembled annually or oftener, to do private justice and to consult upon public business. After

the conquest the ecclesiastical jurisdiction was gradually diverted into another channel; and a court was established which sat in the king's hall, then called by the ancient authors aula regia or aula regis, which was composed of the great officers of State, such as the lord mareschal, who chiefly presided in matters of honor and of arms; the lord chancellor, whose peculiar business it was to keep the great seal and examine all writs that passed under that authority, and the lord high treasrer, who was the principal adviser of the crown in matters

relating to the revenue. These high officers were assisted by persons learned in the laws, called the king's justiciars or justices, and by the greater barons of parliament, all of whom had a seat in the aula regis, and formed a kind of court of appeal, or rather of advice, in matters of great moment and difficulty. Over all presided the chief justiciar, who was the principal minister of state, the second man in the kingdom, and, by virtue of his office, guardian of the realm in the absence of the sovereign. 3 Broom and Had. 110.

Division into district courts - State courts before Code.

Section 2. Division into district courts. The three superior courts of common law, namely, queen's bench, common pleas and exchequer, date their existence from the dissolution of the aula regia, toward the close of the Norman period. 2 Bac. Abr. 689. The court of queen's bench is the supreme court of common law in the kingdom, and consists of a chief justice and five puisne justices. This court still retains many features of the ancient aula regia, and may follow the queen's person wherever she goes, but for some centuries past has usually sat at Westminster, an ancient palace of the crown. 3 Broom & Had. 117. The court of common pleas was established for the purpose of determining causes purely civil, and at its first institution followed the king's person wherever he went; but by the eleventh chapter of magna charta was rendered stationary in Westminster Hall, where the aula regis originally sat, and there it has ever since remained. It consists of a chief and other justices, appointed with jurisdiction to hear and determine all pleas of land and injuries merely civil between subject and subject. 2 Bac. Abr. 697. The court of exchequer was originally set up by William the Conqueror, as a part of the aula regis, but received its present form from Edward I; and intended according to its original institution to have jurisdiction over all matters relating to the revenue of the crown. The judges of this court are appointed by patent, and consist of a lord chief baron, and five puisne barons, called barons of the exchequer. 3 Broom & Had. 114.

Section 3. Corresponding courts in this State prior to Code. The courts existing in this State prior to the adoption of the Code, corresponding with the English courts of common law, were the various courts of common pleas, established in the several counties of the State; the supreme court of the State; and the court for the correction of errors. The first two were courts of original jurisdiction, possessing also appellate jurisdiction from the decisions of the courts immediately below them. The court for the correction of errors was the highest court of judicature in the State, and was exclusively a court of appeal and review.

Of courts of equity.

ARTICLE III.

OF COURTS OF EQUITY.

Section 1. Old court of chancery. The existence of courts of equity, as distinct from courts of law, has been traced back to an early period in the history of English jurisprudence, but their proceedings were conducted with little regard to accuracy or regularity until about the close of the fourteenth century, when the court of chancery, as a distinct tribunal, became firmly established, and the extent of its authority well understood.

A court of chancery was established in this State as early as the year 1683, soon after the people of the colony, under the English government, were admitted to a share in the legislative power. Afterward, by an ordinance of September 2, 1701, a court of chancery was erected, to consist of the governor and council, which was very unpopular, and met with much opposition from the general assembly till a law was passed, in 1711, empowering the governor to act as chancellor; and, in this form, the court continued to exist down to the period of the revolution. Section 2. Recognition under colonial government and State constitution. Such acts of the colonial legislature and such English statutes and common law, as constituted the law of the State on the 19th of April, 1775 were adopted by the first State constitution, framed in 1777, excepting such portions of them as might be repugnant to the provisions of that instrument. No attempt was made to re-organize or define the jurisdiction of the court of chancery, and it was suffered to remain as it had previously existed, except that the office of chancellor was separated from that of governor, and the first chancellor appointed under the new constitution. The court, as thus organized, continued to exist, unaffected by any material constitutional changes, until it was finally abolished by the constitution of 1846.

Section 3. Merger in supreme court. The jurisdiction and power of the court of chancery were merged in that of the supreme court by the constitution of 1846, in which it was declared, as the fundamental law of the State, that there should be a supreme court, having general jurisdiction in law and equity. Const. 1846, art. VI, § 3. The judiciary act of May 12,