283 XVI. ON THE COMMON LAW COURTS AND BY WALKER MARSHALL, Esq. [Read 7th May, 1860.] THE Society will doubtless remember that, some eighteen months ago, a discussion took place here upon what is popularly called the fusion of law and equity. Previously to that, the Attorney-General, in the inaugural address delivered by him, as first president of this Society, upon the 12th of March, 1855, had struck the key-note of reform, and in indicating the history of the division of the two jurisdictions, suggested the means of their union. The subject on which I shall have the honour of reading this evening, is not therefore invested in this room with the attraction of novelty. But considering that, since the occasions to which I have referred, the Common Law Commissioners have presented their third report, in which they recommend that the Common Law Courts should be invested with all equitable powers necessary to enable them to deal completely and finally with every suit properly initiated in those tribunals, so as to supersede in every case the necessity of the intervention of a Court of Equity, either before or after judgment; seeing further, that a bill, carrying out these suggestions to their full extent, has been presented to the legislature, and has undergone an interesting discussion in the House of Lords, where it has been read a second time, and referred to a select committee; it can scarcely, I think, be considered superfluous or ill-timed if this question is brought before the Society, now that it has entered upon a new phase, and that a practical issue has been raised regarding it. I believe the greatest difficulty connected with the subject, and that which offers the most obstinate resistance to the efforts of those who desire to see law and equity administered by one tribunal, lies in the use of the word "equity." The primary meaning of this word differs widely from the techni cal sense. Indeed, I apprehend that neither in the initiation of the jurisdiction of the Chancellor, nor in the principles pursued after the jurisdiction was established, will there be found much trace of that most vicious of all judicial modes of action, namely, the adjudicating according to the mere moral sense of the judge, respecting which it has been sarcastically observed, that under such a system the equity of each different Chancellor would. vary like to the measure of his foot. If such a state of things ever existed in this country, it has long ceased to exist. On the contrary, the equity administered by our tribunals seems in exact accordance with the definition given by Grotius, De Equitate, s. 3, " Æquitas est virtus voluntatis, correctrix ejus in quo lex propter universalitatem deficit. Further, Courts of Equity admit that the foundation of both jurisdictions is the same, by their maxim æquitas sequitur legem. It was not, in fact, from any defect of the Common Law, nor from any incapacity in the legislature to deal with all the rights arising out of the complex relations and dealings of mankind, that the equitable jurisdiction among us was established. The chief reason, I suspect, is rather to be found in the inflexible determination of the Common Law tribunals to adhere to established writs, forms, and processes; and that the equity tribunal, when it possessed itself of the litigated matter, dealt and deals with it very much in the same way that the Common Law tribunal would have done, if it had arrogated, or been invested with, an appropriate process. As said by the Attorney-General in the address to which I have already referred, "It was justly observed by one of the judges in the reign of Henry the Sixth, that if actions on the case had been allowed by Courts of Law as often as occasion required, the writ of subpoena would have been unnecessary; or, in other words, there would have been no distinction between Courts of Law and Courts of Equity, and the whole of the present jurisdiction of the Court of Chancery would have been part of the ordinary jurisdiction of Courts of Law. But, unfortunately, the spirit of the statute of Westminster the Second, was not carried out by the judges of the Courts of Common Law; and in the time of Edward the Third, they declined to act upon writs to which the existing formulæ of pleading, or counting as it was then called, were inapplicable." Let us test this by examining a few of the most familiar heads of equitable jurisdiction, inquiring as to each, whether there is any thing in principle antagonistic to the rules of law, or any thing with which a Court of Common Law could not deal, on the ground that it is to be judged of only by applying natural reason, or, if you please, equitable considerations; for, if there is not, it may fairly be assumed that it was only the defect of process which brought it within the jurisdiction of the Court of Chancery. Take, for example, a very common head of equitable jurisdiction-specific performance. Is there any thing about that which is not quite as much legal as equitable? The obligation to deliver goods or an estate which the defendant has sold, is an obligation quite as perfect as the obligation to pay money for which he has given his bond. It is obviously only by reason of the want of an adequate process that the Common Law tribunals did not grant this relief. If they had chosen to create a new writ, although, as in the old action of ejectment, a fictitious one, they might have compelled specific performance by delivery of an estate sold, and the making of a title to it, just as by ejectment they put the owner in possession of his land; and they might have compelled the delivery of goods sold, by a similar rectification of process, just as they compelled the delivery up of goods to the owner, by the action of detinue, where his chattels were wrongfully detained. Specific performance suggests injunction; for, as the one compels the performance of a private obligation, the other restrains the party bound to perform such obligation from committing a breach. Surely this is as much a legal right as the title to damages after the breach is committed. So far as an argument in favour of vesting Common Law Courts with powers to grant relief, at present afforded exclusively by the Courts of Equity, may be derived from the fact, that such relief has been granted by these courts, such examples are not wanting. Not many years have elapsed since the Common Law Courts had jurisdiction, in at least two instances, to protect a person against a threatened injury, and to enforce specific performance of a private obligation. In both these instances this protection and relief were afforded before any damage had been sustained, and before any cause of action had arisen. So that it would be difficult to cite any instance in which, according to the prevalent technical distinction, the case would be one more distinctively equitable. One of those instances is afforded by the writ curia claudenda, by which the owner of land was protected against an apprehended damage, likely to result from the neglect of an adjoining owner to fence his land. As said by Fitzherbert in his Natura Brevium, page 127, "A man shall have this writ quia timet." This writ was abolished by the statute 3&4 Will. IV., c. 27. The other instance in which the Common Law Courts granted specific relief against a threatened invasion of a right, is afforded by the writ called warrantia chartæ, abolished by the same statute. By this writ the feoffee of lands by deed with warranty, could compel his feoffor or his heir to warrant the lands to him. Although this writ was granted for the purpose of protecting the feoffee in cases where he was impleaded in assize, or other action, in which he could not vouch or call to warranty; yet it is laid down by Fitzherbert, in his same work on writs, page 134, that "a man may sue forth this writ of warrantia charta before he be impleaded in any action." Therefore, by these two writs, not only was specific relief given by Courts of Law, but that relief was extended before any invasion of the right thus protected and enforced. It is perhaps not unworthy of notice, that in the practice thus established, of granting the writ warrantia chartæ before the feoffee was sued, there may be discovered a trace of that. kind of relief which consists in the declaration of a right not attacked-at present a matter of purely equitable jurisdiction. How it was that this principle never germinated into that wide field of relief, which obtains, I believe, in all systems founded on the civil law, of declaring the status of individuals, and the right to property, and thus guarding against the infirmity and casualties of human testimony, is perhaps one of many examples of the manner in which our system came to be built up. Some exigencies were met and others neglected. I entertain no doubt that a deeper investigation into the modes and principles of action of the Common Law Courts, would bring out other instances in which they acted, not merely in analogy with, but exactly in the same way in which the Courts of Equity act, and according to the principles by which they are governed. I shall mention only one other case, in which, as it appears to me, the Common Law Courts. act according to a rule as "equitable" as any laid down or applied by the Court of Chancery. A plea, showing that in case the plaintiff recovered, the defendant would have a cause of action to recover back the same sum, is admitted as a good defence to avoid what is called "circuity of action;" in other words, the Court of Common Law modifies the strict legal rights of the parties, in order to avert the inconvenience of a multiplicity of suits, or of two actions being brought the judgments in which would neutralize each other. In this rule we find something not unlike the principle acted upon in the Equity Courts, in requiring that all the persons materially interested in the subject of the suit should be made parties to the suit, in order that a decree may be made, once for all, decisive on the subject-matter. Lord Redesdale, in his Treatise on Pleadings, p. 164, states the object of this rule of Courts of Equity to be, "to make the performance of the order of the court perfectly safe to those who are compelled to obey it, and to prevent future litigation.” But it was not only the want of adequate writs, and the obstinate adherence of the Common Law tribunals to the ancient forms, which occasioned the necessary interference of the Court of Chancery. Another cause was the want of officers, and of appropriate machinery for investigating complicated transactions. The most striking example of a transfer of jurisdiction through this cause, is afforded by the action of account, a Common Law remedy, but which, to all practical |