be precisely or conveniently estimated in damages. Thus, if a lessee covenant to spend all his hay on the farm, or if a person covenant not to carry on a certain trade within a certain district, a Court of Equity will restrain such party from removing the hay or carrying on the trade.

"There seems to be no reason why a Court of Law should not exercise the same jurisdiction, and restrain violations of legal rights in the cases in which an injunction now issues for that purpose from the Courts of Equity. Full relief, however, could not be given by a Court of Law, in the present defective state of its powers, because it has no means of compelling a discovery; whereas, a Court of Equity not only stays the mischief by injunction, but makes the defendant account for the profits derived from the infraction of the plaintiff's right. But if the method of discovery at law, recommended in our second report, be adopted, this difficulty will be obviated, more particularly if, in addition to the provisions there suggested, the Courts of Law be empowered to issue an attachment upon default made in answering any interrogatories the object of which is to ascertain the amount of damages. And it would obviously be attended with great advantage and convenience, that where common law rights are concerned, the whole litigation relating to them should fall within the cognizance of a Common Law Court; not only because the expense and delay of a suit in equity may be thus avoided, but because the common law judges are more competent than those in equity to decide any question of law which the application for an injunction may involve, and can exercise more conveniently a controlling or directing power over any action connected with the matter of right in dispute.

"To confer this jurisdiction on the Courts of Law, it would not even be necessary to invent a new form of suit. Little more would be required than to give an existing writ a wider application, of a kind sanctioned by ancient usage. For in former times a writ of prohibition was granted, not only to prevent excesses of jurisdiction, but to restrain waste. Prohibition of waste lay at common law, for the owner of the inheritance against tenant by the curtesy, tenant in dower, and guardian in chivalry, and this, says Lord Coke, was an excellent law; for preventing justice excelleth punishing justice.'

The practical suggestions founded on these observations will be found under the head of "Further improvements in the law of actions," at pages 74 and 75 of the third report, as follows, viz. :—

That in all cases of injury or breach of contract, or threatened injury or breach of contract, for which an action at law for damages may be maintained (whether such action shall have been commenced or not), application shall, upon proper affidavit, be allowed to be made by way of motion in any of the Courts of Common Law at Westminster, or in vacation time to a judge at chambers for a writ of prohibition; and that if the court or judge shall be satisfied that the case is such that the recovery of damages would be an inadequate remedy, or that the amount of damages could not be precisely or conveniently ascertained, a rule or order shall be made for issuing a writ of prohibition forthwith, directed to the proper party or parties, prohibiting him or them from the commission or further commission of the acts which are the subject of complaint.

"That such party or parties, upon proper notice to the opposite party, shall be at liberty to move the court or judge to quash the writ of prohibition so issued; and that after both parties have been heard upon

such motion, it shall be at the discretion of the court or judge, under the circumstances of the case, either to quash or support the writ, or to make such new rule or order, by way of qualification or exception of the prohibition first granted, as may seem fit; and where it shall appear expedient to direct that a proper action of trespass, trespass on the case, covenant, or other form of action (according to the nature of the case) be brought, (or when found more convenient) that an issue be tried for the further investigation of the matter in dispute, and to make any order as to the costs of the motion or proceedings aforesaid as may be reasonable and just; and when the result of any proceeding or action brought either by the direction of the court or otherwise, fo determination of the matter in dispute shall appear, the party or partie against whom a prohibition shall have been obtained, shall be at liberty to apply to the court for an order that it be dissolved.

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That, instead of granting the prohibition in the first instance, the court may at its discretion grant a rule to show cause only, why a writ of prohibition should not issue."

We concur in the principle of the above remarks (though somewhat modified in their application by recent changes in the law), and of th suggestions founded upon them. It has been acted upon by the Legislature so far as to confer the power of injunction upon the Common Law Courts in the Patent Law Amendment Act, 1852, s. 42, and so far as to confer the power of granting prohibitions to judges at chambers in the County Court Amendment Act, 13 & 14 Vict. c. 61, s. 22. We, however, propose that the party injured shall be entitled to maintain an action in the ordinary form, save that in the declaration he may claim the prohibition of a wrongful act commenced or threatened, either separately, or together with damages for the injury which he has actually sustained, and that the application for a prohibitory writ may be made at any stage of the cause, either before or after judgment, and granted or denied upon such terms, as to keeping an account, giving security, or otherwise, as may be thought just by the court or judge.

Conflicting Rules of Law and Equity.

We next proceed to consider those cases, happily rare, but which, nevertheless, where they occur, are a discredit to our jurisprudence, in which Courts of Law and Equity apply different rules of right and wrong to the same subject-matter. They do not so much arise out of any defect in procedure, to which our commission is limited, as out of a defective state of the substantive law itself; and the true remedy for such evils is to make the law uniform by legislative enactment. Glaring instances of defects of this description occur in cases where Courts of Law are obliged to hold defences untenable which in a Court of Equity are considered valid. The result is that a Court of Law must give a judgment in favour of the plaintiff which a Court of Equity will restrain him from enforcing. Thus, when one of the parties to a deed under seal has done some act not amounting to an actual prevention of performance, or has entered for valuable consideration into some agreement not under seal by which another party to the deed would have been absolved from the performance of his covenant but for the circumstance of its being under seal, which (by a harsh application of the rule of the civil law, eo genere quinque dissolvi quo colligatum est), nullifies in a Court of Law the defence arising out of such an act or

agreement, and subjects the covenanting party to a judgment for the damages occasioned by his breach of covenant, thus left technically unexcused, a Court of Equity will interpose, and, disregarding the mere formality of the seal, will by injunction perpetually prohibit the party, whose act or agreement but for that formality would have constituted a defence, from enforcing the judgment which he has obtained, and which, but for the imperative strictness of the law, the Common Law Courts would not have pronounced.

It thus appears that there are cases in which Courts of Common Law have not sufficient power to prevent the law, as administered by them, from being made the means of vexation, and of useless expense. It would surely not be intrusting too much to these courts to enable them to protect themselves from being made the arena of unjust litigation, and to furnish them with adequate power of exterminating it. Why should not the final, and, if justice be done, inevitable result of litigation be attained in the first instance by enacting, that whatever is ground for a perpetual injunction shall for the future be received by Courts of Common Law in the first instance, as a defence? We see no reason why it should not be done, and we think that Courts of Common Law ought to be empowered to receive such defences by way of plea in every case in which the party pleading them would be entitled to unconditional relief by injunction; and that in cases where such relief in Courts of Equity would be conditional or discretionary, the Courts of Law should have power to give, in a summary way, the same relief against actions pending therein as might be obtained by resorting to a Court of Equity. In an infinity of cases of ordinary occurrence, in which the expense of the proceedings in Courts of Equity might prevent any application there for redress, complete justice would be done between the parties in the Court of Common Law in which the action was instituted; and in cases of extraordinary difficulty parties might still, in the discretion of the court or judge, be left to adopt the more formal course of proceeding, as has commonly been done upon applications in the nature of an auditâ querelâ, a proceeding to be relieved against execution upon the ground of matter arising after judgment. For the same reasons it seems desirable to enable Courts of Law to repel inequitable defences, such as, in ejectment, an outstanding legal estate held in trust for the plaintiff, or in an action upon a negotiable instrument, the loss of the instrument, provided the plaintiff was willing to give satisfactory indemnity.

We are convinced that without some such enactments as those which we have here suggested the administration of justice in the Courts of Common Law will remain, even as regards purely common law rights, imperfect; and that our suggestions if carried into effect will not only be the means of saving much vexation, expense, and delay in litigated cases, but will also conduce generally to a better observance of justice, by adding to the speed and facility with which it can be thoroughly enforced.

Enforcement of Maritime Liens.

In conclusion we may notice, that if to the improved and enlarged procedure which we have suggested were added the incidental powers of attachment of goods and debts, and of calling in the aid of experts where deemed necessary, the Courts of Common Law would be enabled

to exercise ample jurisdiction over maritime liens. The learning on this subject is often incidentally discussed in mercantile causes in the Common Law Courts; but for want of adequate means of enforcing such rights there, suitors are, notwithstanding the superior machinery for the trial of facts possessed by the Courts of Common Law, at present obliged to resort to the Court of Admiralty for relief. By conferring on the Courts of Common Law the powers which we have thus suggested, these courts would be enabled to afford effectual and complete redress.

We shall proceed, with the utmost diligence in our power, to consider the other matters included in your Majesty's commission; and we humbly submit this our second report to your Majesty's royal consideration.