and preventing common law injuries. We think we shall not outstep the limits of our commission by so far expressing our opinion upon what is commonly called the fusion of law and equity as to say, that, whether or not it may be thought conducive to despatch of business and satisfaction in the administration of justice to do away altogether with the present division of labour between the Courts of Law and Equity, so far as that division arises out of the diversity of the subject-matters over which either class of courts exercises an exclusive and complete jurisdiction, it appears to us that the Courts of Common Law, to be able satisfactorily to administer justice, ought to possess, in all matters within their jurisdiction, the power to give all the redress necessary to protect and vindicate common law rights, and to prevent wrongs, whether existing or likely to happen unless prevented.

The jurisdiction of Courts of Equity extends over many subjectmatters entirely outside the pale of the common law jurisdiction. In some cases the Court of Chancery acts in the capacity of representing the crown as parens patriæ, as in the guardianship and control of persons of tender age or unsound mind, and in the superintendence of charitable uses. In others it exercises jurisdiction conferred by statute, as, for instance, in the custody and control of money deposited in the formation of public companies, or by way of compensation to persons whose lands have been taken or injuriously affected by such companies in cases under the act for the protection of shipowners against liability beyond the value of the ship and freight where there are more than one claimant; and very many others, some of which do, and others of which do not, involve any interference with or control over common law rights. There remains a great body of equitable jurisdiction, under various heads, which is exercised for the greater part over subjects with which the Common Law Courts do not meddle, but to some extent also over a common field in which the Courts of Equity either furnish a supplementary or more complete remedy in respect of common law rights, or actually restrain the exercise of such rights on what are termed equitable grounds.

It is only in respect of that class of cases in which the Courts of Common Law and Equity operate upon the same subject-matter in different ways, either by reason of acting upon conflicting rules, or by applying different forms of remedy, or rather different portions of a complete remedy for the same wrong, that we consider ourselves authorised to report; but we do not doubt that in these cases in which at present the combined operation of both courts, without any satisfactory means of communication between them, is required to make up a complete redress even as between the same parties and in respect of the same subject-matter, a consolidation of all the elements of a complete remedy in the same court is obviously desirable, not to say imperatively necessary, to the establishment of a consistent and rational system of procedure.

We proceed, in the first place, to consider the cases in which Courts of Common Law at present afford insufficient protection, or other partial or inadequate remedies for the infraction of legal rights, and in which, in our view, the supplemental power exercised by Courts of Equity ought to be added to the principal jurisdiction now vested in the Courts of Common Law.

Inadequacy of present Remedy.

With few exceptions, all actions have but one aim and end-compensation in damages. The principal exceptions (for the actions of quare impedit and dower rarely occur in practice) are:-1. The action of ejectment, in which the judgment is that the plaintiff recover the land or tenements sued for; 2. Replevin, which is an action to try the validity of a distress or other deprivation of goods, and the result of which is that if the plaintiff obtains a verdict he retains the specific chattels distrained, which in the first stage of the proceedings were restored to him upon security being given for their return. The action of detinue is of a mixed character; in form the plaintiff recovers the specific chattels sued for or their value; but as it is at the option of the defendant to pay the value, this action cannot, practically, be considered as a means of recovering specific chattels. In all other actions, as at present constituted, the sole effect of the verdict and judgment is to procure a stipulated sum payable in respect of some debt or duty or damages in money for the loss sustained by the plaintiff by the nonperformance of a contract, or for an injury sustained by a wrongful act.

It is, however, beyond all question that, in very many cases, money compensation, after a loss or wrong has been sustained, is a very inadequate remedy, and one which falls very far short of what complete justice requires. It is obvious that where obligations are imposed by the law, or undertaken by the act of parties, the party on whose behalf they are created has a right to insist on the specific performance of the acts which have been undertaken for his benefit, where such acts are capable of being performed, and where money would not be a perfect compensation for their nonperformance; and, in like manner, that where an injury is about to be committed for which a mere money payment would not be a full and perfect redress, a power should exist of anticipating and prohibiting the wrongful act.

These defects of the common law, which, it may be observed, did not in ancient times exist to the same extent as at present, having been left by the Legislature unredressed, Courts of Equity have stepped in to supply the remedy. These courts have taken upon them in certain cases of common law obligations and rights to enforce specific performance, and in certain other cases of legal wrongs commenced or threatened to prohibit by injunction the commission of wrongful acts.

Writ of Mandamus.

It is true that, besides the proceeding by action at law, there exists in cases where a public inconvenience or private wrong is occasioned by the omission of a public or official duty, or one imposed by act of Parliament for the benefit of individuals, and no sufficient remedy is afforded by action for damages, a process, by the writ of mandamus, to compel the performance of the particular duty. This proceeding is not common to all the courts, but peculiar to the Court of Queen's Bench, and it appears to have been originally confined in its operation to a very limited class of cases affecting the administration of public affairs; such as the election of corporate officers, the restoration of officers improperly removed, the compelling inferior courts to proceed in matters within their jurisdiction, or public officers to perform duties imposed upon them by common law or by statute, as to make a rate

and the like; and there can be little doubt that the extreme hardship arising out of the defect in the law which we have pointed out was one considerable motive for the extension of the remedy in more recent times to cases in which the rights of private individuals only were concerned. In the course of modern legislation no session of Parliament occurs in which a great number of acts of Parliament do not pass for making railways, forming docks, building bridges, improving towns, and an infinite variety of public works, for the most part to be done by joint-stock corporations or companies for the benefit of the shareholders. In almost every act of this kind numerous provisions are to be found, which direct that the company shall do certain works for the benefit of individuals; such as making communications between lands intersected by works authorised by the acts, substituting new buildings for others which have been necessarily removed, making roads and communications in lieu of old ones blocked up or injured, and a variety of other works of a similar character. In the event of non-compliance with these enactments, as, indeed, in all cases where the proceeding by mandamus must be resorted to, the remedy is uncertain, tedious and expensive.

The present mode of proceeding by mandamus, as amended by numerous acts of Parliament, and especially by 4 Anne, c. 18; 2 Anne, c. 20; 1 Will, 4, c, 21, and 6 & 7 Vict. c. 67, is as follows: :

The person seeking for relief by the writ of mandamus is obliged to apply for a rule to show cause why the writ should not issue. This is done upon affidavit, in which is set out the whole case, in the majority of instances at great trouble and expense. The rule can only be obtained in term time, and, in practice, can only be made absolute during term. If the rule is opposed, cause is shown also on affidavits, and it commonly happens that, considerable delay and expense having been incurred, both sides more or less admit, or the court intimates, that the case involves questions of fact which cannot satisfactorily be disposed of on affidavit, or questions of law which ought to be put upon record, so as to be subject to revision in a Court of Error, and the mandamus consequently issues in order that such questions may be determined upon the return. The writ thus granted must bear teste, and be returnable in term time, whereby a further delay is occasioned. When issued, it recites the facts which constitute the obligation, and commands the party to whom it is addressed to do the act demanded, or to show cause why he does not. To this writ a return must be made, either that the writ has been complied with, or showing the grounds whereon the defendant justifies his resistance. This return may be, 1st, a traverse of some material fact alleged by the prosecutor as ground for the writ; 2nd. Allegation of fresh matter as an answer to the prosecutor's case. If the writ be bad upon the fact of it, as not suggesting, in point of fact, a case which justifies the mandatory part, the defendant may, without making any return, move to quash the writ for insufficiency, or he may reserve his objection to a later period of the proceedings as in an ordinary action. If a return be made, the prosecutor may move to quash it, or may traverse or plead to it, or demur to it as insufficient in point of law; or, if his private interest is in question, he may still do that which was, before certain statutory improvements of this procedure, his only remedy (now unusual in practice), viz., bring an action to recover damages for the falsehood of the return, upon the decision of which action in his favour the court awards a peremptory mandamus. The proceedings on a demurrer or other pleading in mandamus are

nearly identical with those in an ordinary action as described in our first report. In the event of a prosecutor obtaining a judgment, the court awards a peremptory mandamus, and in cases of private injury, damages and costs.

It appears to us that the practice in these proceedings by mandamus may be materially improved and its operation beneficially extended, so as to supply one of the defects in the jurisdiction of Courts of Common Law already pointed out.

In the first place, the necessity for a preliminary application being made in term time upon affidavits for leave to issue the writ is anomalous and objectionable. In the great majority of cases it has no effect but to create expense and delay, and operate as a mere obstruction to justice. If a man may issue a writ to try his right to an estate of indefinite value without the special leave of the court obtained upon voluminous affidavits, why may he not issue a writ to try his right to have a bridge made upon the same estate, or to have compensation assessed for damage done to a small portion of it by severance? There is no shadow of reason for such a distinction. In any case where a party has such an interest in the issuing of a mandamus as to be able to maintain an action for damages in case of a false return, or, in other words, wherever any person is interested as a private individual in the performance of any act which may be enforced by a mandamus, the latter writ is as much ex debito justitiæ as the writ by which, after so much expense and delay, he may now recover damages for a false return.

It has been said, indeed, that the application to the court in the first instance operates as a check to frivolous and vexatious suits. It may be so in some few instances; but to make that argument worth anything, it must be established, contrary to daily experience, that the majority of actions are of a frivolous or vexatious character; and, further, must be put out of consideration the far greater number of cases in which the injured party submits to an unjust resistance or a disadvantageous compromise, rather than wait term after term for the result of an expensive motion for a mandamus, with the prospect of being at length permitted to commence proceedings which in a still future term may bring forth a return, and put the applicant in a position to litigate his right. Besides, laws ought to be made for the cases which most frequently happen, and not for exceptional ones. Ordinary actions, when brought against good faith, may be stayed by the court; yet nobody would suggest that, therefore, every action should be stayed until the court gives leave to proceed. Moreover, a remedy may be found in requiring a demand of performance to precede the action, and giving power to the court or a judge to deprive the plaintiff of costs in cases where the proceedings are frivolous and vexatious.

We propose, that the process, pleading, and proceedings in mandamus where private rights are concerned shall be the same as in an ordinary action, save that the plaintiff shall be at liberty in his declaration to claim, either alone or with a money demand, the performance of the act required, and that, in the event of judgment being given for the plaintiff, the court shall have power to enforce that judgment by attachment or distringas, and in case of contumacy further to adjudge that the act required may be done by the plaintiff, or some person appointed by the court, at the expense of the defendant. There will be no reason for confining this remedy, thus stripped of its prerogative character, to`

the Court of Queen's Bench, but express provision should be made that the jurisdiction of that court to grant writs of mandamus, as at present, in cases where the public are interested, shall in nowise be affected; though we would suggest that in these cases the rule should be absolute in the first instance, and that the writs ought to bear teste on the day of their issuing, and be returnable within a given time after service, whether in term or vacation.

Specific Performance.

The proceedings thus simplified may be applied to every case in which specific performance of a contract or duty is to be enforced; and, for the reasons which we have aleady expressed, we think it ought to be so applied, and that Courts of Law ought to have power to grant specific performance, and to enforce the specific delivery of goods in every case in which that relief has hitherto been granted by Courts of Equity. This mode of procedure will be the same as in ordinary actions, with the exception that the plaintiff, by his declaration, will pray the specific relief instead of merely a sum of money. There are cases in which a Court of Equity, upon peculiar considerations of doubtful justice, grants specific performance though the legal rights be not complete at the commencement of the suit. It may not be advisable to interfere with the jurisdiction of Courts of Equity in such cases, but only to give Courts of Law the power of enforcing specific performance in the same cases in which compensation in damages only can now be obtained in those courts.

Injunction.

The subject of preventive remedies has been so fully treated in the third report of the former Common Law Commissioners, that we think we cannot do better than cite the following remarks from pp. 18 and 19 of that report :

The ordinary scope of the legal remedy is to give compensation or redress for injuries sustained, and it affords in general no means for preventing their commission. On the other hand, the practice of the Courts of Equity, by way of injunction, extends not only to the protection of equitable rights, but of those also for the violation of which an action lies at common law.

"A Court of Equity will, by injunction, restrain waste in all cases. It will also restrain in case of irremediable mischief, i. e., such mischief as cannot, when committed, be adequately compensated by damages. Equity has, in this respect, gradually enlarged a jurisdiction, which it originally assumed by analogy to the case of waste; and the instances in which it now gives this species of relief, where common law rights are invaded, may be classed as follows: 1. Waste; 2. Trespass, and Torts in certain particular cases, where, if the defendant were suffered to proceed in the commission of the injury, there would be no adequate remedy at law. The principal of these are, trespass by the defendant's working from his own mine into the plaintiff's; infraction of copyrights or patent rights; destruction of deeds or chattels belonging to the plaintiff, and having a peculiar value not to be estimated in money (in which latter cases the court enforces restoration also); 3. Breach of contract, where there is a contract to abstain from doing a specific thing, and the damage sustained by its violation cannot