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would be difficult to say how much the distinction between the system administered in Courts of Law, and that recognised in Courts of Equity, has been aggravated by the exclusive devotion of the professors of each to his own branch. Law and Equity together form the art or science of ascertaining, protecting, and vindicating rights; but being divorced, each had its own professors, glorying in his half profession, ignoring the other part, even congratulating himself upon his ignorance of it, and indulging in open contempt of its rules and mode of procedure. A disadvantage connected with this, consists in the necessity, in many cases, of consulting two sets of legal advisers before a party's rights can be known, or his course of action prescribed.
Then, what are the advantages derived from the severance of law and equity to the extent that the Common Law Courts disregard those considerations upon which the Equity Courts proceed? I am able to suggest only two-first, That to which allusion has been made already, increased accuracy from the division of labour among the courts; secondly, Certainty secured by having the stern rule of law inflexibly administered, and the modifying principle applied by a distinct tribunal.
As to the division of labour advantage, as a mere device for dividing jurisdiction, no worse principle could be adopted. In that view it has every possible vice, inasmuch as its limits are not clearly defined, there is a constant dove-tailing and mingling of jurisdiction-neither jurisdiction can act independently of the other-yet they do not act in harmony, but rather in antagonism. Division of labour may, without any disadvantage of that sort, be secured to an almost unlimited extent, by confining courts to one particular subject of relief—as bankruptcy, marriage, shipping, contracts, torts, &c. Therefore, as a mere means of procuring this end, it is an impolitic contrivance, being attended with inconveniences, all of which might be avoided and the same end attained. Then, as to the supposed advantage of certainty, it may
be asked, why a rule should be considered certain merely because it cannot be dispensed with, or modified by the court in which the suit is brought, when it may be by the intervention of another court, which will certainly interfere if asked to do so ? I confess I do not see the difference in this respect between the application of legal and equitable principles by one tribunal, and their application by different tribunals to the same suit. Nay, there is more uncertainty in the latter case, because there is less calculation as to whether and how the modifying principle will be applied, and at what stage of the suit, and in what manner the equitable tribunal will intervene.
The recent changes which have been effected in the Courts of Law and of Equity, upon the recommendation of the respective commissions, have had for their object assimilation to the extent to which each of those courts is impotent by reason of the want of the powers of the other. If, as a result, we have in some cases Courts of Law and of Equity, each having jurisdiction to dispose finally of the same suit, so that the suitor may elect his tribunal, and obtain the same relief from either, I see no inconvenience or anomaly from that. The requirement is, that each should apply the same rules, and adjudicate the same way, not that either should have a monopoly of causes.
So far as regards the defective jurisdiction of the Common Law Courts, arising from the want of adequate process, it has been remedied to a great extent by reforms already effected ; and others in contemplation are now before the legislature. But in respect of that, owing to the want of competent machinery, or in other words of necessary officers, little of any thing remedial has been done. The Common Law Courts have no officers, or powers, regularly constituted for the purpose of taking accounts or investigating title. It is true that matters of account are frequently in practice referred to one of the masters; but in these cases the master acts as any other arbitrator does, by disposing as judge and jury of the cause, and entering the verdict for the one party or the other. There are no powers for taking accounts collateral to the suit, and for a report being made to the court, on which the court may act. Until this defect is remedied, it is difficult to see how the jurisdiction proposed by the bill now in parliament to be given to the Common Law Courts, can be exercised to its legitimate extent. One of the provisions of the Law and Equity bill proposes to give specific performance of every contract for the breach of which damages might be recovered. The case of most ordinary occurrence, perhaps, will be a suit for the conveyance of land contracted to be sold. In that the necessity of investigating title is in many cases immediately involved ; a process which cannot be performed by a jury or other tribunal sitting in judicio. There is, however, no provision in the bill for conducting these investigations. The same bill proposes to allow the recognition of equitable interests in questions of title raised by interpleader. That also may require the investigation of matters not convenient, or, perhaps, possible to be determined by a jury, or by the court, without the assistance of an officer, who may inquire and report. Indeed, as matters now stand, considerable hardship, and certainly no little cost, and frequently great delay, is occasioned to suitors by the want of machinery for the taking of accounts. Rarely a day passes at nisi prius, without the discovery being made, at some stage of a cause, that a jury are unable to deal with the matter. The consequence is that the case must go to arbitration. The parties are compelled to accept a tribunal they did not choose, a tribunal from which there is no appeal. They did not desire arbitration; if they had desired it, they would not have come to the court for it. They wished the adjudication of the courts of the land, and not the award of an arbitrator, whose motives of action it is impossible to scrutinize, the grounds of whose decision remain unrevealed in his own breast, and whose fiat is irreversible. The entire expense of the trial is thrown away, and an indefinite prospect of adjourned meetings is opened up.
The question to what extent the Law Courts are to be clothed with equitable jurisdiction, is now presented before the legislature in a definite shape by the Law and Equity bill. Upon its various provisions there is a very great diversity of opinion among the profession. Few, I believe, dissent from all the proposed changes; many no doubt entertain very strong objections to some. It is indeed somewhat curious, that although three of the equity judges, the Master of the
Rolls, and the Lords Justices, have offered a solemn protest against the measure ; all of the Common Law Judges have, according to the Lord Chancellor's statement in the House of Lords, signified their approval of it.
The bill has two aspects or phases, and it is with reference to these, as I apprehend, that a difference of opinion will be entertained. Such as are of opinion that wherever, according to the established law, a case is properly initiated in a Common Law Court, the court should have jurisdiction to apply equitable principles, but who object to any transfer from Courts of Equity of suits which at present are commenced in these tribunals, will approve of one set of provisions of the bill and object to others. But such as go further in the direction of fusion will approve also of the other set of clauses, which seek to invest the courts with the power of administering every kind of relief applicable to legal rights. The bill then appears to me to have two objects: First, to enable Courts of Law to deal finally with all suits which may now he instituted in these courts ; Secondly, to enable Courts of Law to protect, vindicate, and enforce legal rights, by granting the same kind of remedy and redress, which at present can be obtained only by application to a Court of Equity. The first of these objects is sought to be attained by empowering Courts of Law to restrain by injunction the defendant in ejectment, and in all actions for the recovery of land or goods, from injuring, or making away with the land or goods (sec. 9), by enabling the court to grant to a defendant, either before or after judgment, the conditional or final relief for which he has now to go to a Court of Equity. [Secs. 10 and 11.] By
. extending to Common Law Courts the relief obtainable in Courts of Equity in cases of ejectment for a forfeiture for non-payment of rent, or to insure against fire [Secs, 21 and 22], and by prohibiting the interference of the Courts of Equity in any suit where the relief therein sought might have been obtained by plea or otherwise. [Sec. 30.]
[Sec. 30.] This, I believe, to be a complete summary of the provisions of the bill, directed to the abolition of the necessity of Courts of Equity intervening before or after judgment in suits cognizable at law
The other class of provisions-namely, those directed to enable Common Law Courts, in cases where no action has been brought, to afford relief of a character at present granted only by Courts of Equity, will be found in the first, twenty-fourth, thirty-second, and thirty-third sections. By the first section it is enacted, that "in all cases of threatened breach of contract or other injury, of such a nature that an action at law for damages might be maintained for the same, if committed application may be made, either ex parte, or by rule or summons, to the court or a judge, for a writ of injunction." By the 24th section a new action is given for the delivery up of documents. By the 32nd and 33rd sections, interpleader is allowed in the case of equitable claims. These are all the equitable powers proposed to be given by this bill.
The alteration sought to be effected by the Law and Equity bill, I believe to be the most important which has ever been introduced by any measure affecting the administration of justice in this country; and if carried into effect will inaugurate, as I believe, a brighter era, in which law will be arrayed in a simpler robe, and will bear the sword of justice in a firmer, because a surer grasp.