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the elections, and even this dreary flash of fun is not to be despised, although it would be somewhat unfair were the merits of a quo warranto information to be judged of by the trade or business of the relator ; and if the cork leg manufacturer has misnamed his legal process, the slip is one which an AttorneyGeneral might have allowed to pass. This fringe being taken off we have the fact that before the dissolution Mr. GLADSTONE had notice that a quo warranto information would be applied for calling upon him to show by what authority he claimed to sit for Greenwich. We noticed the Acts, out of which the question arises, when the Premier combined his two offices in his own person, and doubted whether he could hold them without reelection. There was no authority upon the subject, and we therefore now put it on record, as the opinion of eminent persons, such as Lord COLERIDGE and Sir GEORGE JESSEL, Sir HENRY JAMES and Sir VERNON HARCOURT, that the First Lord of the Treasury, by accepting the office of Chancellor of the Exchequer, is not required to seek re-election. This opinion was given by law officers, and the question arose on the construction of particular statutes. Consequently it cannot be inferred as an absolute certainty that judicial decision would be in accordance with such opinion, and it would be desirable to make the matter clear by further legislation.
outside world to judge of their real importance, and their importance depends so much, when all is said and done, upon the goodwill of the persons who make them, that there is no doubt of the power of the Judges and their advisers practically to compel Par. liament to postpone the Bill.” This is an extremely grave charge --for charge we take it to be. If there be a desire to exercise extreme care, and to pay attention to trifles, and if the result is inevitable delay, we should consider that the ultimate saving of expense to the public would far outweigh any advantage to be gained by hastening the Act into operation. To this, however, the Pall Mall Gazette seems to shut its eyes, for it is evidently not ignorant of the amount of case law which has been generated by the technical difficulties which have arisen for decision out of even modern pleading. It observes that the amount of case law which will be superseded by the change introduced by the Act can hardly be imagined by anyone who is not a professional lawyer. The amount of case law which znay be originated by the hasty drafting of forms of pleading and rules of practice is also probably beyond the comprehension of a person who is not a professional lawyer, if not of the Pall Mall Gazette itself. We repeat that it will be a decided public economy to delay the operation of the measure if the alteration is to hurry it into operation supplemented by a body of crude rules. But whatever the actual state of the case may be, we are persuaded that it is from no ill will to the measure, and from no desire to throw obstacles in the way of its operation, that lawyers are (if such be the fact) raising difficulties. Lawyers are rather anxious to make the plunge into the new practice, and to adjust their business to the altered circum. stances.
The elevation of Baron AMPHLETT from the Equity Bar to the Common Law Bench was doubtless in pursuance of the scheme for the fusion of Law and Equity which the Judicature Act has already initiated, and therefore much to be commended. But we hope this process of amalgamation will be carried out with strict impartiality. If equity lawyers are to be promoted to the Common Law Bench, the Common Law Bar should occupy some of the seats upon the Equity Bench, aud we wish to protest by anticipation against a large extension of the design which has been exhibited in the unexceptionable selection of Baron AMPHLETT. The Equity Bar will not, we hope, be often preferred to the Common Law Bar for the judgeships which must for a long time be looked upon as forming a Bench of Common lawyers. The Common Law Bar has no lack of men entitled to promotion. The name of Mr. HAWKINS, whose clear and logical mind pre-eminently fits him for the duties of Nisi Prius and criminal courts,
will at once suggest itself. Serjeant Simon has proved in the House of Commons his capacity for dealing with legal reforms, and his promotion would be approved by the Profession by whom he is held in great esteem. Mr. GIFFARD is an excellent lawyer, and as the present Chancellor does not permit judicial patronage to be governed by party considerations, the selection would doubtless recommend itself. His purpose is manifestly to prefer the best man, and we might name a dozen other eminent men at the Common Law Bar from whom selection might be worthily made. Our present purpose is, however, merely to support their claim to the possession of at least the majority of the seats in the courts to which they have been led to look for promotion.
The rumours that the operation of the Judicature Act is to be postponed have taken definite shape, and we have little doubt that they are well founded. The council of Judges and their very limited number of assistants, we should imagine, have had little time as yet to get the practice rules into anything like shape, even supposing that they have arrived at clear and definite ideas on the subject. That every endeavour will be made to avoid delay we feel convinced, and we are very greatly surprised to observe that a journal which has always been characterised by remarkable appreciation of the higher intelligence of the legal Profession (the Pall Mall Gazette), should suggest that the lawyers will, if they can, put obstacles in the way of the reform inaugurated by the passing of the Act. Speaking of the Act our contemporary says, “Its leading conception is, that there is to be one mode of proceeding, and one only, for every civil case which can come before a court of justice, however simple or however complicated it may happen to be. Though this is unfamiliar to the minds of English lawyers, it is a task which both can and ought to be performed, and any sort of excuse for not performing it ought to be regarded with the utmost possible suspicion.” It is something quite new to us that English lawyers having assented almost unanimously to the great principle of the measure, any excuse is open to them for defeating the practical operation of the principle, or that there is a shadow of a pretence for regarding anything done or proposed to be done or omitted by those engaged in framing the rules under the Act with "the utmost possible suspicion.” Our contemporary however is apparently better informed, for be does not close his remarks with our quotations, but goes on to observe:"One of the besetting sins of lawyers, especially of successful lawyers who with grief and pain have acquainted themselves with an old and intricate system of whatever kind, is the sin of making difficulties. It is their profession to magnify the importance of trifles, and to regard every question which may be raised and debated as a possible bar to the application of most useful principles. The excuses which they may devise for not doing what is required of them are so various, it is so difficult for the
THE NON-REGISTRATION OF MORTGAGES INCLUDING
FIXTURES. ONCE more a decision has been given upon the question of the necessity for registering as a bill of sale a mortgage of premises, including the trade fixtures;
but the Judge who decided it was able to hold that the
case was governed by the recent decision of Ex parte Daglish, re Wilde (29 L. T. Rep. N. S. 168; L. Rep. 8 Ch. 1072). The last decision was Meux v. Allen, before the Master of the Rolls, on the 22nd ult., and the facts were these :-The defendant, W. Allen, being entitled to the possession of a public house, and to certain fixtures and fittings upon the premises for the residue of a term, applied to the plaintiffs for an advance of £800, which was made to him on the security of the house upon the terms of a deed-poll of the 11th Aug. 1869, whereby Allen agreed to execute a legal mortgage when required, and the lease was at the same time deposited with the plaintiffs. By an indenture of the 7th Dec. 1873, the defendant Allen mortgaged, by way of demise, the premises comprised in the lease to the plaintiffs for the residue of the term. Neither the equitable deposit, nor the mortgage, was registered under the Bills of Sale Act. Allen subsequently executed two registered bills of sale to the other defendants of the fixtures and fittings of the house, some of which had been placed there before the date of the deed-poll, and some subsequently, and the plaintiffs filed their bill alleging that such fixtures formed part of their security, and praying an injunction to restrain the defendants from removing them. And, as we have said, the Master of the Rolls held that the case was governed by Ex parte Daglish, and dismissed the bill.
We may here remind our readers shortly of what Ex parte Daglish decided and the decisions which it affected. There was a mortgage of premises by way of demise, and the mortgage included trade fixtures—the premises being a mill, and the fixtures machinery and in the deed there was a power of sale of the machinery; fixed and moveable, either with the mill or separately. And the decision was that so far as the deed dealt with the fixtures it required registration under the Bills of Sale Act, and therefore that the fixtures were the property of the trustee on the bankruptcy of the mortgagor. This decision is in confirmation of Begbie v. Fenwick (24 L. T. Rep. N. S. 58) and Hawtrey v. Bullin (28 L. T. Rep. N. S. 532; L. Rep. 8 Q. B. 290), but is not in accordance with Boyd v. Shorrock (L. Rep. 5 Eq. 72 ; 17 L. T. Rep: N. S. 197). The latter case turned in the main upon the nature of the fixtures, being looms fastened by nails to the floors of a cotton mill. Vice-Chancellor Wood there followed the principle which was laid down in Ex parte Barclay (5 De G. M. & G. 403), and which he himself followed in Mather v. Fraser (2 K. & J. 536, namely, that if the tenant has affixed to the freehold during his tenancy articles in such a manner as to make it appear that during the term they are not to be removed, and that he regards them as attached to the property, according to his interest in the property, then, on any dealing by him with the property to which these articles are affixed, the court would presume that he meant to deal with the property as it stood, with all these things so attached, and to pass the property in its then condition. In Mather v. Fraser the Vice-Chancellor had applied to the fixtures which would pass to a mortgagee of the leasehold the term “quasi-permanent” -those articles which are affixed in a quasi-permanent manner. And this term was adopted by the Court of Queen's Bench in Longbottom v. Berry (L. Rep. 5 Q. B. 123; 22 1. T. Rep. N. S. 385), all the machinery
in that case which was annexed to the floor, ceilings, or sides of The second rule, which relates to the destination during the the building in a "quasi-permanent manner by means of bolts first year of the income of the unconverted property, rests on and screws, being held to pass to the equitable mortgagee of the fee. the view taken by Lord Lyndhurst in Dimes v. Scott (4 Russ.
In judging of these cases attention must be directed to the 195), viz., that the legatee for life was entitled during the year distinction between mortgages by owners of the freehold and by in lieu of the actual income to the dividends on so much Three lessees of a term, pointed out by Lord Justice Mellish in Ex parte per Cent. Consolidated Stock as the proceeds of the property, if Daglish. “The cases,” his Lordship said, “where the mortgagors converted, would have purchased at the end of the year,
followed have been freeholders, are plainly distinguishable, because a free- by decisions of Sir James Wigram and Lord Romilly, and approved holder cannot be said to be in possession of fixtures which he has apparently by Lord St. Leonards. This rule has been confirmed put up, although the same things, if put up by a lessee, would be by the decision of Lord Cairns in Brown v. Gellatly (L. Rep. 2 Ch. trade fixtures; for in point of law the machinery affixed to the Ap. 751). In that case trustees retained certain investments, premises is just as much part of the premises as the bricks." On which by the will they were expressly directed to convert, and Lord this ground Boyd v. Shorrock has been dissented from, the looms Cairns, affirming the decision of Lord Romilly on this point, and having heen put up temporarily by a lessee of a term for his con- without meaning to say that the trustees were by any means open venience, and being detachable without damage to themselves or to censure for not having converted them within the year, held that the freehold; and although such fixtures put up by a freeholder the rights of the parties must be regulated as if they had been so conwould pass under a mortgage of the freehold, they are neverthe- verted, and that the proper order to make was that in Dimes v. Scott. less "in the possession" of a leaseholder, so that a pledge of The third and fourth rules do not appear to call for any remark. them must be registered under the Bills of Sale Act. In Begbie v. The 5th Rule relates to the income of property which can be, but Fenwick (24 L. T. Rep. N.S. 58) Vice-Chancellor Malins said he is not, converted within the year—under which Mr. Jarman in the was unable to understand the grounds of Vice-Chancellor Wood's notes discusses whether the principle of Dimes v. Scott applies decision in Boyd v. Shorrock ; and in Hawtreyv. Butlin (L. Rep. 8 where trustees have an option to invest in government or real or Q. B. 290; 28 L, T. Rep. N.S. 532) both Mr. Justice Blackburn other securities, so as to give to the tenant for life the income of a and Mr. Justice Mellor preferred the decision of Vice-Chancellor supposititious sum of Consols, or whether, as in the much disMalins in Begbie v. Fenwick to that of Vice-Chancellor Wood in cussed case of Robinson v. Robinson, 4 per cent. on the value Boyd v. Shorrock. Mr. Justice Mellor thought that Vice-Chan- should be allowed, where such an option is given to the trustees. cellor Wood's attention could not have been called to the interpre- We regret to observe that although the case of Robinson v. Robintation clause of the Bills of Sale Act, and we may remind our son was pressed on Lord Cairns in Brown v. Gellatly, he refused readers that “personal chattels are interpreted to mean "goods, to adopt the 4 per cent. rule, although the trustees had a wide furniture, fixtures, and other articles capable of complete delivery,' option as to investment. We think it is much to be regretted that and as between landlord and tenant, lessor and lessee, looms any doubt should be cast on the considered judgment of Lord fixed by nails to a wall for the convenience of the tenant Cranworth and Sir J. K. Knight Bruce, L.JJ. in Robinson v. or lessee, are clearly fixtures, and are in the apparent Robinson, and especially so, as there can be little doubt, as Mr. possession of a tenant or lessee. The true construction of the Jarman points out, that in the earlier case of Dimes v. Scott, on Bills of Sale Act, acccording to Lord Justice Mellish, is that which Lord Cairns founds his judgment, the fact of the trustees 1 if a person is in possession of fixtures, then he cannot pledge having an option was not adverted to and was probably overlooked. those fixtures so as to give a title to the mortgagee, except by an By adopting this rule in all cases where the trustees have a instrument which is to be registered as a bill of sale.” This choice of investments, much difficulty will be avoided by assimilapassage precedes that which we have already quoted as to the ting the law to that which under the fifth rule laid down by Mr. distinction between mortgages by freeholders and by tenants or Jarman exists when the property ought to be, but from its leaseholders, the freeholder not being merely in possession of the nature cannot be, converted immediately, at least, without great fixtures, but they being a part of his freehold; and Lord Justice loss to the estate. Here the principle adopted is that of valuation James said, “When you once arrive at the fact that a person has at the
testator's death, £4 per cent being allowed to the tenant for the property in fixtures as distinct from their connection with and life. We should think that this ought to be established as the rule adhesion to the freehold, then they are, in my opinion, the very in all cases where trustees are not bound to invest in Consols. The class of things which which were intended to be provided for by case of Meyer v. Simonsen (5 De G. & Sm. 723), where the rule in the Bills of Sale Act."
question was much discussed by the late Sir James Parker, has The law is made quite clear by the cases which we have referred been repeatedly followed. The cases of Cox v. Cox (L. Rep. 8 Eq. to, and it is plain that the Master of the Rolls could not, had he 343), and Farley v. Hyder (42 L. J. Rep. N. S. 626, Ch.), desired it, have come to a conclusion other than he did in Meux v. may be mentioned as recent examples of this equitable mode Allen without upsetting a string of consistent cases.
of adjustment between tenant for life and remainderman. Before parting with this subject we may note a decision of Lord
Romilly in Re Peyton's Settlement (L. Rep. 7 Eq. 463), in ADJUSTMENTS BETWEEN TENANTS FOR LIFE AND
which, as it appears to us, the scrupulous care with which in REMAINDERMEN.
general the courts hold an even hand between successive takers The mutual rights of successive takers of settled property, and the is not distinctly visible; at all events the naked statement corresponding duties of trustees in respect to the conversion and which has been put forward as the principle of the decision is, to investment of property so situated, form a subject whose main our notions, not maintainable. That case has been said to decide outlines may be considered settled, but the details of which and " that the purchase of freehold ground rents is within a power to their application to particular cases frequently leave room for purchase lands in fee simple in possession :” (3 Davidson Conv. painful embarrassment. We do not at present refer to cases of 61, 3rd edit.). The case was this: the trustees of settlement apportionment, using that term in its narrow sense, but to those and the tenant for life were desirous to invest £8866, part of the larger questions which arise from non-conversion of property moneys arising from the sale of a portion of the settled lands in which by the terms of the instrument or by the general law ought the purchase of several plots of land at Kensington, on which to be converted. The leading rules deducible from the cases are fifty-five dwelling-houses had been erected, and of which leases well stated (1 Jarm. Wills 571 et seq., 3rd edit.), and we propose to had been granted for terms of ninety-nine years, at rents amountnotice some of the principal decisions by which those rules have ing in the whole to £403. The trustees petitioned the court for since been illustrated, supplemented, or modified.
an opinion whether such purchase was within a power in the The five rules which the learned author lays down relate to the settlement to purchase “hereditaments in fee simple in possescase of a residuary bequest containing a trust for sale and conver- sion.' Lord Romilly had no doubt that it was.
We cansion-the case under which the questions we are considering most not accept such a decision, in an unopposed case, presentgenerally arise.
ing a state of facts under which the particular purchase was The first rule, to the effect that the residuary legatee for life is clearly desirable for all parties, as being of much value on entitled to the income during the first year of property duly the general question. We should have thought that a parinvested, was firmly established by the case of Macpherson v. chase of the so-called ground rents was a purchase both in the Macpherson in the House of Lords (1 Macq. H. of L. Cas. 243). letter and in the spirit of a fee simple in “reversion,” and that This rule must be read with the important qualifications intro- the words “ in possession" were added in order that the purchase duced by the cases of Allhusen v. Whittell (16 L. T. Rep. N. S. money might bear a fair relation to the income to be enjoyed 695; L. Rep. 4 Eq. 295), followed by Sir J. Bacon, V.C. in Lambert by each of the successive tenants. A “ground rent” is a vague v. Lambert (43 L. J. Rep. N. S. 106). These decisions will be suffi- term, and trustees, where the consent of the tenant for life was ciently explained by the head note in Allhusen v. Whittell, which not required, by buying land of which the leases granted at low is as follows: "Where a testator has bequeathed legacies and ground rents had only a few years to run, could prejudice the given his residue to a tenant for life with remainder over; execu- tenant for life to the advantage of those in remainder to any tors, though as between themselves and the persons interested in extent, producing precisely the same effoct upon him as by grantthe residue, they are at liberty to have recourse to any funds they ing leases themselves of the settled lands, and accepting a low please in order to pay debts and legacies, yet will be treated by the rent in consideration of a premium. We feel some surprise at the court, in adjusting the accounts between tenant for life and decision, but much greater surprise that it should have been remainderman, as having paid the debts and legacies not out of allowed to pass urquestioned. We should have thought an estate capital only, nor out of income only, but with ch portion of the subject to leases at low rents as compared with the value of the capital as, together with the income of that portion for one year, fee simple, was not, either in letter or spirit, an estate "in poswas sufficient for the purpose.”
session," within the meaning of the power in question.
I say this for the purpose of explaining the true ground on which I think the decisions of these cases must rest and the principle of the decisions. There have been cases apparently somewhat conflicting in principle brought before us in argument, but I think it can be gathered that the true question in all of them is as I have stated. Now non-performance or non-delivery may, under certain circumstances, or in particular cases, amount to such an act, or may be evidence of such conduct as would justify the judge in holding, or the jury in finding, either that an act of non-delivery or non-payment was in its nature, and unqualified by the circumstances which took place, such an act as indicated an intention to refuse to perform the contract, and to set the other party free from performing his part. That seems to me the principle on which Hoare v. Rennie was decided, and without presuming to say that the court who decided that case were right or wrong, the principle laid down was that where time was of the essence of the contract, as the Court of Exchequer said it was there, and there had been a failure to deliver part of the goods, and the whole object of the contract was frustrated, the non-delivery under the circumstances was an act by which the party renounced all intention to perform his part of the contract, and thereby set free the other party.”
This view, we apprehend, leaves the decision of such cases entirely to the jury, and we think that it is highly desirable that they should be so left. Without considering any of the judicial decisions and dicta in other cases—and there are several-we think it ought to be established that the intention of a party committing a breach of contract should be judged of by a jury, and that whenever it is possible the contract should be enforced, the party damnified by partial breach or a breach of part being left to his remedy by action to recover damages. The result would probably in all cases be more just and satisfactory.
THE RESCISSION OF CONTRACTS OF SALE OF
GOODS. The principle of law to be laid down as to the right to rescind a contract for the sale of goods, and as to what amounts to a rescission is one which has not been altogether plain hitherto, and the recent case of Freeth v. Bury (29 L. T. Rep. N.S. 773) shows that the courts have not always dealt with the subject on grounds entirely satisfactory. It may be useful if we state shortly the position of the question.
In the first place, when there is a condition to be performed by one party to a contract, before he can call upon the other to perform his part, no right against the latter" arises until the performance of his precedent condition. This leads up to the difficulty which has arisen in connection with contracts of sale with reference to rescission, and we shall here quote some clear remarks of Mr. Benjamin in his work on the Sale of Personal Property, on the rule as to the operation of conditions precedent. He says (p. 422, 1st edit.): “Although a man may refuse to perform his promise till the other party has complied with a condition precedent, yet if he has received and accepted a substantial part of that which was to be performed in his favour, the condition precedent changes its character and becomes a warranty or independent agreement, affording no defence to an action, but giving right to a cross action for damages. The reason is, that it woull be unjust under such circumstances, that a party who has received a part of the consideration for which he bargained, should keep it and pay nothing, because he did not receive the whole. The law, therefore, obliges him to perform his part of the agreement, and leaves him to his action of damages against the other side, for the imperfect performance of the condition. It is in the application of this rule that the cases have not been harmonious, and the practitioner is often embarrassed in advising, for the courts draw a distinction between what is and what is not a substantial part of the contract, in determining, whether the original condition precedent has become converted ex post facto into an independent agreement."
The difficulty here pointed out arises more particularly in contracts comprising deliveries at periods of time of lots of one entire quantity, and the point raised in Freeth v. Burr, and preceding cases of an analogous character, has been whether a contracting party to whom one of a series of lots is not delivered at the time fixed is entitled to rescind the contract, and whether a refusal to receive any more of the contract goods is a rescission of the contract. A case which has rendered the law somewhat uncertain is Hoare v. Rennie (29 L. J. 73, Ex.), some of the Judges having been unable to understand the grounds of the decision.
There the defendants bought of the plaintiffs 667 tons of Swedish iron, the iron to be shipped from Sweden in the months of June, July, August and September, in about equal portions each month, at £15 10s. per ton, delivered in London. The plaintiffs shipped only twenty-one tons in June, which arrived in London after the expiration of the month. It was held that the defendants were not bound to accept the smaller quantity, or any subsequent quantity tendered, and that, therefore, a plea showing the non-shipment of any larger quantity within the specified time, was an answer to an action for not accepting the iron or any part of it. The quotation which we have made from Benjamin on Sale supports the interrogatory of Justice Blackburn in Simpson v. Crippin (27 L. T. Rep. N. S. 546) why damages would not be a compensation for breach of the contract to deliver a specific lot of an entire quantity, the party damnified still being bound by his contract to accept subsequent deliveries.
The short ground upon which Chief Baron Pollock based his judgment in Hoare v. Rennie was, “that a man has no right to consider the breach of a contract a performance of it;" and his Lordship considered that the performance of conditions precedent had nothing whatever to do with the case. Baron Watson had not the slightest doubt about the case from the beginning to the end. “I am of opinion,” he said, that the defendants are not obliged to take this portion of the first shipment, because the contract is not performed on the part of the plaintiffs; and,” he added, “if it were necessary to express any opinion, I think that by that means they have rescinded the contract, which they had a right to do, and that the plaintiffs not having performed their contract, the defendants are entitled to our judgment.” In Jonassohn v. Young (4 B. & S. 296), Mr. Justice Crompton justified Hoare v. Rennie on the ground that it belonged to a class of cases in which time is of the essence of the contract; and Lord Coleridge, in Freeth v. Burr, placed all the cases cited before the court on the same footing as based upon the consideration whether there has been an abandonment or intention to abandon the contract. As this case will have to be taken as setting a doubt at rest, we cite his Lordship's observations: “I think it important,” he said, “to express my own view, and I believe also that of the court, that in cases of this kind, where the question is, whether one party to a contract is set free from performance of it by the course of action of the other, the real point to be looked at is, whether, under all the circumstances, the act or conduct of the party which is relied on as setting the other party free, does or does not amount to an abandonment, or intention of abandonment, and altogether to a refusal to perform his part of the contract.
AMERICAN OPINION UPON THE OPERATION OF THE
JUDICATURE ACT. The American Law Review has an interesting article on the Judicature Act, with reference to English and American juris. prudence, and the conclusions arrived at are very sensible, and quite in accordance with views already expressed by us. Our contemporary says:
Such are some of the principal provisions of the Act which is intended to remedy the defects in the existing procedure; it is confessedly the most sweeping measure that has ever been passed in regard to the department which it affects. Of course, there will be great differences of opinion as to its chances of success, and, until it has come into successful operation, many will think that it is an attempt to remove distinctions and forms which are necessary and essential parts of the law, and that the attempt will only result in endless confusion, entailing evils far greater than those belonging to the present system. But it must be remembered that it is not a hurried measure, accomplished by ardent reformers imperfectly acquainted with the subject which they were handling, and bent only upon destroying the existing institutions. It is an Act passed with the recommendation and approval of the most conservative class in England; it was brought in by the Lord Chancellor, and was oriticised and discussed most carefully in every part by the, eminent lawyers in the House of Lords, and, after it left them with their assent, it was again criticised and discussed by the Commons. The public discussion in the newspapers indicated the feeling of the Profession and the educated classes in regard to it. From the first there seemed to be the most unusual agreement that the Act, or something like it, must pass. All seemed to be at one on the general question; almost the only controversy was whether it should not be made still more comprehensive. It would be useless, as well as difficult, to consider now how it will work in practice. It will undoubtedly cause great expense before it can work easily, and it will probably affect injuriously the interests of some branches of the legal Profession ; but whether it will confer on the country the benefits which are expected, remains to be seen. The chances, at least, are in its favour; and it must be admitted that the Act itself bears in every part the marks of an honest intention to free the courts from antiquated technicalities and forms, and make legal procedure as simple and direct as may be permitted by the subjects with which it has to deal, and that it keeps constantly in view the idea that the object of the courts and their forms is the administration of justice, without unnecessary delay or burdensome expense.
It remains to consider, in a very general way, whether there are in this country any of the evils which the Judicature Act aims at reforming in England, and whether it suggests any remedies which are applicable to our situation. It will be noticed, in reading it, how large a part of the Act is taken up with provisions which relate entirely to the constitution of the new court, and the assignment to it of the Judges and jurisdiction of the old. It seems as if it were intended to blot out all their traditions and prejudices which might embarrass the working of the new system, The distinotions and conflict between common law and equity had come to be so marked, partly because they had grown up in courts wholly unconnected with one another. This cause of difference it was determined to destroy in a more effectual way than by giving to each court full jurisdiction in both branches, and allowing them to administer it in their own way. Hence the old courts have been swert entirely away, with very little sentimental regard for them or their antiquity. Whatever changes and reforms we have occasion to make, this task will probably be spared us. In those states where there have at any time been separate courts of common law and of equity, the separation has generally ceased to exist. In others, there was originally no equity jurisdiction, and it has been conferred from time to time, by statute, on the existing common law courts, and they have now, as a general thing, pretty full equity jurisdiction. This mode of conferring jurisdiction
in equity has not been very favourable to the growth of equitable doctrines, but,
at all events, we have the two jurisdictions exercised by the same courts, which seems to have been considered in England the first step towards reform.
This fact of their administration by one court, however, makes the dis
tinction and conflict between them seem all the more anomalous, because the chief reason for the distinction and conflict has ceased to exist. To illustrate this, take the case of equitable defences to actions. If a defen. dant should set up such a defence to an action at common law, he would be told that it constituted no defence, though the court might suggest that perhaps he might have some relief in equity. If he should then file a bill, stating the same matters which had been adjudged to constitute no de. fence, and praying an injunction against the maintenance of the action, the same court would probably grant it, and enjoin the prosecution of the proceeding which it had before decided could be legally maintained. Now it is difficult to see whether from the legal or the popular standpoint, why this should not have been done at first. If the facts of the defendant's case are such as would entitle him to a perpetual injunction in equity, it is because those facts constitute an equitable defence to the action, and
an equitable defence is as meritorious as & legal one, and frequently more so; if it were allowed in the action at common law, the same result as that which is accomplished by, an in. junction in a second suit might be as well accomplished by a judgment for the defendant in the first. If the facts upon which he relies are sufficient to entitle him only to an injunction for a limited period of time, the equitable relief might be given by staying the proceedings. In each of these cases the same thing would be effected by one proceeding, which now requires two. Circuity and multiplicity of action, at least, would be avoided, and the advantage would be gained of treating things as they really are, instead of as they are not.
It is not difficult to show that the change just suggested would not be a dangerous innovation, for instances may be taken from the existing practice where & similar jurisdiction is exercised by our courts in actions at common law. It is a familiar rule that a chose in action cannot be assigned at law, and that, if it be assigned, the assignee acquires only an equitable interest, which, however, entitles him to bring an action in the name of the assignor, and this action is conducted as if the assignor were really the plaintiff. Yet, if the defendant attempts to set up, by way of defence, a discharge or release by the plaintiff, or a payment to him, made after notice of the assignment, the other party may then show what the facts really are, and that the real plaintiff is not the person that he seems to be; if this is shown, the defendant will not be allowed to avail himself of his legal defence. Here is an instance in which a court administering common law deprives & defendant of a defence which is a perfect legal answer to their action, because the defence is inequitable. How this practice arose may be doubtful, but it probably originated in the necessity of the case, equity jurisdiction being extremely limited. Another common instance of equitable relief being given in an action at common law, is that of judgments upon bonds and recognisances, apon which the amount due, according to the principles of equity, is ascertained, and that amount only is the plaintiff allowed to collect. It would be only an extension of the principle of these cases if the court were allowed in every cause to give the relief to which the parties are really entitled. The distinction and conflict between the two jurisdictions would then soon cease to exist. In the English Act, the clause providing that in all matters in which there is any conflict or variance between their rules, the rules of equity shall prevail, is superfluous, except to indicate the spirit of the Act. For wherever equity has established a different rule from that of the common law, the rule of equity is the law.
The great difficulty at present arises from thinking of the law as con. sisting of the common law alone, whereas it consists of equity and the common law together, and the former requires attention more, if anything, than the latter. No one can safely be advised as to any matter which is within the jurisdiction of both, by the light of the common law alone ; if he should be so advised, he would be in a condition like that of one who was correctly informed of some rules of common law which had been done away with by statute. Practically, then, when any equitable matter appears in an action at common law, whether as a defence or otherwise, the court says, in effect, What you bring forward may afford very good ground for relief, but it is a matter which this court entirely ignores, and we shall proceed in the present action and give judgment just as if that ground did not exist; if, however, you will commence a proceeding for the purpose, on the same ground, and call it a bill in equity, we will then render of no effect our judgment and all our proceedings. There is no necessity for this circuity, and there can be no practical difficulty in doing away with it, and giving in each action all the relief, whether legal or equitable, to which the parties are entitled. As we accustom ourselves to the recognition of the fact that equity and common law are but parts of one system, the anomaly of the existing mode of administering them becomes more and more apparent.
What has been said about the concurrent administration of equity and common law in the same action, applies, of course, only to a small part of their jurisdictions. There are, besides, the cases where their jurisdictions are exclusive. But, as we regard them more carefully, the difference between them seems the more to be one of procedure and nomenclature only. They cannot well be fused further than the administering them concurrently and the use of similar procedure. In cases where the juris. diction is exclusive, great hardship arises from its being doubtful to which of them it belongs; and the person seeking relief incurs the risk, if he mistakes it, of being put to great expense, and, perhaps, of losing his remedy altogether. In proceedings in equity, it is usual to pray not only for the specific relief to which a plaintiff considers himself entitled, but also for general relief, and the court gives him such equitable relief as he may be entitled to, although different from that specially prayed for. Suppose that in every case the court, as before suggested, should have power to give all the relief to which the parties way be entitled, it would then give the plaintiff the proper remedy, although it might be a legal one, as they now give him any equitable remedy. It would then be impossible for courts to say of the plaintiff, as under the pretent practice they are sometimes bound to say,- What remedies at law or in equity he may now have, we need not consider.
The perusal of the Judicature Act will suggest many other instances in which the present procedure is defective, and in which the defects might be remedied without great innovations or changes, things which no one believes more firmly than the writer to be great evils in themselves, and only to be justified by much greater benefits being derived from them. Most of these instances arise from its being necessary to make use of more than one jurisdiction to dispose finally of a single matter, or what is analogous to it, to make use of more than one action or proceed. ing. For an example may be taken the case where a defendant is liable for an injury and has a remedy over against someone else. In such cases it would often be an improvement to dispose of the whole matter in one action, by making the person who is liable over, a party, and deciding the question as between him and the defendant, as well as between the
defendant and the plaintiff. Attempts are now made to do this in a roundabout way, by giving notice of the action to the person liable, but,
is still necessary to prove his liability in a second action. It is not hard to conceive of a case in which & defendant might be found liable, solely on the ground of the wrong-doing of someone else (a servant for example), for whose acts he was responsible, and yet might fail to prove the same facts in an action against the wrongdoer. These instances are only selected to show how great a reform might be effected by a little change in procedure, and a result which is now indirectly or partly attained, might be attained directly and completely.
The great evil which exists, and which excludes many others, is delay; an evil which must to some extent, always be incidental to the administration of the law. Still, it is an universally acknowledged evil, and every means should be used to overcome it. The most famous English charter con. tained a prohibition, not only of the sale and denial, but also of delay of justice. The two first prohibitions are scrupulously observed, but little attention is given to the last. It may even be said that there is a general feeling in the Profession that delay is a right to which lawyers are by etiquette entitled, and that they are discourteously treatnd if their opponnont pushes forward the case as fast as the rules of law allow. For those who keep in mind the interests of their clients, when those interests require that there should be no delay, the great accumulation of arrears, the times fixed for certain steps, and the dilatory proceedings which can be taken by the other side, present great obstacles to rapid progress. It is easy to see the reasons which excite among business men å disgust for legal proceed. ings, and make them prefer to lose whatever might be gained from them, to being subjected to their necessary annoyance and wearisome delay. Many who commmence proceedings abandon them, or submit to disadvan. tageous compromises; many others think it prudent to stay away alto. gether. Justice would require, if it were possible, that, whenever any person, entitled to a legal remedy, asked for it, he should instantly receive it; the necessity of ascertaining whether he is entitled to it requires certain legal forms and proceedings to be gone through, which cause delay. These forms and proceedings ought not to be more dilatory than are necessary to determine the rights of the parties, nor offer to either party any inducement to prolong the litigation, except for this one object.
First of all, it must be acknowledged that our courts and judges are greatly overworked, and that they are unable promptly to dispose of all the business which comes before them ; it is a matter of surprise that they do 80 much work, and do it so well amount of work much greater than that which comes before any English court. In Massachusetts it has been attempted to remedy this evil from time to time by increasing the number of Judges, and the number of Judges of the Supreme Judicial Court, which was four in 1847, is now seven. There are also ten Judges of the Supreme Court, which has generally concurrent jurisdiction with the former in matters of common law, besides other jurisdiction; and there is a desire on the part of some to increase this number, owing to the arrears constantly accumulating. There is something suggestive about this. The number of Judges of the existing courts, and the new court. to be established, in England, is thirty-one, and these Judges dispose of substantially all the litigation of England and Wales; (there are, besides, County Courts, and some others, but of a very limited jurisdiction, which, in the County Courts, does not extend above £50.) By the last census, the population of England and Wales exceeded twenty-two millions and a half. The population of Massachusetts is less than one million and a half, which is less than one-fifteenth part of the former ? It will readily be seen, therefore, that there are, even in the Supreme Judicial Court alone, a larger number of Judges in proportion to the population than in England. Of the English Judges eighteen belong to the courts of common law, and it is considered that this is a larger force than is necessary, and it is proposed in consequence to reduce the number to fifteen. Yet in Massachusetts the arrears are constantly increasing, even with an additional court of ten common law Judges to dispose of them. These matters deserve consideration, at least, before the number of Judges is increased, for possibly there exists some other remedy which it will also be necessary at some time to apply.
LAW LIBRARY. We bave received the twenty-fourth edition of the Cabinet Liwyer (London: Longmans, Green and Co.) The success which has been attained by this publication is the best guarantee of its utility; During the day or two that it has been upon our table we have had occasion to refer to it, and found it extremely serviceable. We believe it will be a useful addition to the practical works which should be in the library of every lawyer. Bushby's Manual of the Practice of Elections. Fourth Edition.
By HENRY HARDCASTLE, Barrister-at-Law. London: Stevens
and Haynes. We regret that we were unable to notice this volume last week, so as to recommend it to those who have been busy in the practical conduct of elections during the last few days. Doubtless, how. ever, it has found its way into many hands, and by its practical utility has been its own recommendation. Mr. Hardcastle, who prepares this edition of Mr. Bushby's handbook, has developed it into a respectable treatise. He has been engaged in preparing reports of the trial of election petitions, and gives considerable prominence to the subject of corrupt practices. We suppose we must anticipate that this part of his work will be of more use than any other now that the general election is over, but we cannot say that the law will be found treated so clearly as is desirable. For example, the position of the law respecting conveyance of voters to the poll is by no means satisfactorily explained (see p. 129), the difficulties raised in the Salford case being noticed in a manner scarcely intelligible.
Mr. Bushby's original treatise formed an excellent ground work upon which to build up a dissertation on the new law, and the way to work the ballot is well described. Half the volume is composed of statutes, therefore the practitioner will have in this work the text of all the law which he wants.
the identity in substance of the two inventions is a the specification is sufficient. The patent was for
matter to be established by extrinsic evidence.” improvements in central-fire breech-loading cart(By C. Higgins, Esq., M.A., F.C.3., Barrister-at-Law.) Blackburn, J., said : “ If the general claim to the ridges. The specification, describing the method
use of an invention were cut down and limited to of performing the invention, referred to certain COMPLETE SPECIFICATION.
the use of the invention in the particular way figures in drawings annexed thereto, but did not (Continued from p. 232.)
pointed out by reason of the words 'as herein distinguish between what was now and what was Seed v. Higgins. H. L. 1860.- The plain. described,' it would be a narrow rule of construe. old. The patentee claimed the manufacture of tiff took out a patent for an improvement in patentees, and, what weighs more with me, gene. 1*; and I also claim the manufacture of carta
tion, generally working to the detriment of cartridges described with reference figs. 1, 2, and tion claimed the discovery of the application of rally giving an effect to specifications different ridges described with reference to figs. 3, 4, and
from what the persons drawing them intended, or 3* Held, that the patent might be upheld by but he filed a disclaimer, declaring that he in- | 117; 31 L. J., N. S. 233, Q. B. ; 9 Jur. N. S. 29.) the principle of centrifugal force for such purpose, those reading them understand.”
(10 H. of L. Cas. limiting the claim (as in Seed v. Higgins)
manufacture of cartridges described with reference tended to claim only the application of centri.
Hills v. Evans. Ch. 1862.- The construction of to the above-mentioned figures. (L. Rep. 3 Eq. fugal force in the particular manner represented in drawings attached to the
specification. Held, written instruments, belongs to the court; but the
a specification, as the construction of all other 500n, 513; 14 W.R. 126; 13 L. T. Rep. N. s. 399.) that, taking the specification and disclaimer explanation of the words or technical terms of art, visional specification of a patent may be omitted
Thomas v. Welch. 1866.-Any part of the protogether, they sustained the patent for the inven. the phrases used in commerce, and the proof and in the complete specification, if there is no fraud, tion of the particular machine described in the results of the processes which are described (and and no one can be prejudiced or misled thereby, drawings. (8 E. & B. 755; 27 L.J., N. S.,
148, Q. B.) in a chemical patent the ascertainment of chemical and the effect of the remainder is not altered by Affirmed by a majority of the judges on appeal to the equivalents) are matters of fact upon which evi- the omission. All the claiming clauses may be Court of Exchequer Chamber
(8 E. & B.771; 27 dence may be given, contradictory testimony may struck out of the specification of a patent by a L. J., N. S., 411, Q. B.). Affirmed in the House of be adduced, and upon which it is the province and disclaimer, if there remain in the body of the Lords (8 H. of L. Cas. 550). Campbell, C.J., in right of a jury to decide. But when those por: specification words sufficiently distinguishing delivering the judgment of the Court of Queen's tions of a specification are made the subject of what the invention is which the patentee claims. Bench, said: “It is quite clear that if the speci- evidence, the direction' to be given to the jury with (L. Rep. 1 C. P. 192 ; 35 L. J., N. Š., C. P., 200.) fication and the disclaimer being taken together, regard to the construction of the rest of the anything is claimed which was not comprised in patent, which is conceived in ordinary language, the original specification, the whole is bad ; and on the issue that the plaintiff has not duly specified jury arriving
at a certain conclusion with regard must be a direction; upon the hypothesis of the
SOLICITORS' JOURNAL. his invention, the verdict onght to be entered for to the meaning of those terms, the signification of the defendant.” As to the construction of a specification, his Lordship said: "Where novelty the result of the technical procedure deseribed in prints
of addresses recently issued by candidates those phrases, the truth of those processes, and we have received from several country solicitors or infringement depends merely on the construc the specification. In the comparison of two specia for Parliamentary honours, among them some tion of the specification, it is a pure question of fications, each of which is filled with terms of art, emanating from members of the Bar, who have law for the judge ; but where the consideration and with the description of technical processes, during the past week sought election. The object, arises how far one machine imitates or resembles the duty of the court is confined to giving the of course, in bringing these specimens of patriotic another in that which is the alleged invention, it legal construction of such documents taken
inde composition to our notice, is the fact that they fact which must be left to the jury.". Lord pendently, but the comparison of the two instra contain direct and deliberate attacks
on the Chelmsford, in delivering his judgment in the ments, and ascertaining whether the words, as vested interests of our Profession. In one of House of Lords, said : “ Assuming that the speci specification, do or do not denote the same exter- costs of transferring and otherwise dealing with
interpreted by the court, and contained in one these baits to country electors we find “The fication had been originally bad, on account of the nal matter as the words, as interpreted and ex. land must be greatly modified,” and a wellgenerality of the claim, I see nothing in the Act of plained by the court, contained in the other speci- | known member of the Bar, seeking
election this Parliament which prevents such an objection as fication, is a matter of fact, and within the pro- very day
in the southern division of a southern this being removed, the only limitation to a dis: vince of a jury. (31 L. J., N. S., Ch. 457; 8 Jur., county, says, in his address : "I shall vote claimer of any part of a specification
being that it N. S., 525.) shall not extend the exclusive right granted by the letters patent.”
Mackelcan v. Rennie. 1862.-In construing a property, and a consequent reduction in legal
for simplifying the mode of dealing with real specification, it is not competent to the inventor charges." When the emoluments of the proctors Oxley v. Holden. 1860.-Patent for " certain
to pray in aid the provisional specification in improvements in the doors and sashes of car: order to explain or enlarge the meaning of the
were in a great measure taken from them, they riages.” One part of the invention was described complete specification. (13 C. B., N. S., 52.),
were compensated, and we can only say that if
chattels real are to be dealt with as near as can as a novel arrangement and mode of fitting and Newall v. Elliott. 1864.--Pollock, C. B.: “The be, in the same way as chattels personal, solicitors working sliding sashes, glass frames, blinds, and patentee of a combination is bound to state what (those whose business consists for most part of shutters for railway and other carriages,” which parts of the combination he claims to be new, or conveyancing, and the work necessarily arising consisted of a metal plate, with a slot and a what parts of the combination he has taken from therefrom) will clearly be entitled to a most stud or pin working in a groove on each side that general stock of knowledge which is common of the sash or frame ; and the patentee claimed to all
the public.” (10 Jur., N. S.,
if seriously thought of by
liberal compensation. As to whether the change ** the metal fittings and the mode of applying the 11 ; 10 L. T. Rep. N. S. 792.) same, described herein as the second part of my
those in power, it should be opposed by the Pro
Renardv. Levinstein.1864.-Lord Justice Knight fession, we offer no opinion, but it is to be reinvention. The description of the metal fittings Bruce : “Considering the different consequences gretted that members of our own Profession should was inseparably interwoven, throughout the
that may arise as to the part of an invention specification, with the mode of applying them, communicated from a foreign country, and as to
use such a question for political purposes. Held, that this was a claim, not for the metal the part of the same invention, or set of inven. fittings themselves, but for the mode of applying tions, which may be deemed to be in every respect We are asked to call attention to the fact that them, and, consequently, that the patent was sus- new, I consider it to be a serious and very argu
a considerable portion of the business before the tained by proof chat the application was new, able question, whether it is or is not incumbent Judicial Committee of the Privy Council in relathough the stud and plate themselves were old. (8 on the patentee to distinguish, to define, and to tion to appeals from India, is conducted by non; C. B., N. S., 666; 30 L.J., N. S., 68, C. P.)
particularise what is new and what is old." (3 professional gentlemen. This probably is not Betts v. Menzies. H. L. 1861.--As specifica- N. R. 546 ; 10 L. T. Rep. N. S. 177.)
generally known. We shall, therefore, feel it our tions describe external objects, though the lan- Foxwell v. Bostock. Ch. 1864.- In a patent for an duty to refer to this matter again, after making guage in two specifications be identically the improved arrangement or now combination of certain inquiries which we think will further ensame, it would be impossible to predicate of the machinery, the specification must describe the lighten the Profession on this subject. two that they described exactly the same identical improvement and define the novelty, otherwise, external object, unless the terms of art used in and in a more specific form, than by the general A COUNTRY solicitor, who has just conducted a both the specifications could be ascertained to description of the entire machine. It is not borough election as political agent for one of the have been the same at the date of both the sufficient that a person possessed of all the know. candidates, informs us that while the cause which patents. The question of identity of signi. ledge existing at the time of the patent, on the he advocated, and for which he worked before the fication belongs to the province of evidence, subject matter of the patent, will discern the revising barrister, and, indeed, every other way, and not to the province of construction. Wilde, improvement; or, that it may be discovered upon was successful, the organisation being almost B., in the course of his answers to the ques- a minute comparison and collation of all existing perfect ; that of his opponent was so defective tions put to the judges by the House of combinations with the new combination that is that their defeat was partly attributed to it. One Lords, said: “If the terms of the two specifica claimed. The term "combination of machinery correspondent adds that he was assisted in his tions are identical, and if it is not disputed that is nothing but an extended expression of the work by several active solicitors in the town, the terms of art used in the one have the same word " machine." (10 L. T. Rep. N. 8., 144; 3 while the work of his opponents was undertaken meaning as the same terms used in the other, N. R. 546.)
We are asked to con
by non-professional men. which, from the lapse of time between the dates of Jordan v. Moore. 1866.-A. obtained a patent Clude from this, and we are quite prepared to do the two patents may not always be the case, the for" certain
improvements in the construction of so, that election work generally should be the court ought to determine that the first publica- ships and other vessels navigating on water." By trusted only to solicitors.
Their business habits tion anticipated the second without evidence, and his specification the patentee claimed
as his inven. and professional knowledge especially fit them
for second was practicable. If, though not identical," with an iron frame, combined with an external how especially useful solicitors are at this work; the language used in the two, when construed by covering of timber planking for the sides, bilges, as well for the reason above named as for their the court, describes identically the same process, and
bottoms; (6) the construction of iron frames influence and tact, are usually found to lose 10 machine, or manufacture, the court may, subject adapted to an external covering of timber for the opportunity of turning such valuable material to to the same remark as to the term of art, decide sides, bilges, and bottoms, as described :". Held, the best advantage. at once upon the question of anticipation. But if that the expression “iron frame" in the first after construction, and after the meaning of the claim was not confined to an iron frame, such as parties in the two documents has been ascer- that specified in the sixth claim, but compre
NOTES OF NEW DECISIONS. tained by the court, there be any difference hended whatever might, according to the ordinary OFFICER OF PARISH-SALARIED SOLICITORbetween the two things described, which may be use of language, be called “an iron frame." RIGHT TO COMPENSATION-METROPOLITAN POOR essential or material to the invention, and which (L. Rep. 1 Č. P. 624; 35 L. J., N. S., 268, C. P.) ACT 1867 (30 & 31 VICT. C. 6, s. 76).-In 1857 the is contended by either of the parties to be essen. Daw v. Eley. 1867.-- Where a specification trustees of a parish who, 'under" a local Act
, tial or material to the invention, the court in the first instance describes the invention in too managed the relief of the poor, appointed a soli cannot decide such a controversy; it has neither general terms but afterwards, in describing the citor to assist their clerk in the arrangement of materials nor means for so doing, and it must
go method of performing the invention, refers to legal matters, at £100 per annum. By the Metro two identical descriptions to portray two identical the claim
made is for the manufacture of the poor in this parish was transferred to guardiana; inventions ; but when the descriptions are different invention described with reference to those figures, and officers and persons appointed, or acting