very nature, being kept quite distinct in the process of elimination; and each also from its very nature being referred to the proper tribunal for its determination.

On this system of pleading, as ancient as the law of England, and so simple and sound in principle, numerous defects and abuses had nevertheless been engrafted, which, in the opinion of many, went far to destroy its utility. What these were, it would be out of place to enumerate here, as they have been effectually swept away by the Statute of 1852, and are now only remembered as things of the past.

EQUITABLE DEFENCES.

But while that statute carefully preserved all that was valuable in our system of pleading, it did not attempt to deal in any way with those cases in which courts of law and courts of equity applied different rules of right and wrong to the same subject-matter; the most glaring instance of which occurred when a court of law was obliged to hold untenable a defence which a court of equity considered valid; the former being obliged to give a judgment in favour of a party, which the latter immediately restrained him. from enforcing. To these cases the Commissioners drew attention in their second report, recommending that the common law courts should be empowered to receive equitable defences by way of plea in every case in which the party pleading them would be entitled to relief in equity; and that in cases where such relief in a court 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 chancery. The legislature has not, however, seen fit as yet to intrust the judges of the courts of law with the jurisdiction that is alone requisite to enable them to do complete justice to their suitors, and to save them the wholly unnecessary and wasteful expense of resorting to the Courts of Chancery for that relief, which the judges and officers of the Courts of Common Law are fully as competent to afford; but by the statute of 1854 an extensive equitable jurisdiction was nevertheless intrusted to them;

the defendant (or plaintiff in replevin) being enabled in any case, in which he would be entitled to relief against a judgment on equitable grounds, to plead the facts which entitle him to such relief by way of defence, and the plaintiff being in like manner enabled to reply the facts which would in equity avoid the plea.

INJUNCTION.

Another branch of equitable jurisdiction which has been doled out to the Courts of Common Law, and which it may be useful to mention in this place, relates to the issue of writs of injunction.

In their second report, the Commissioners pointed out that the ordinary scope of the remedy afforded by courts of law is to give compensation or redress for injuries which have been actually sustained. These courts in general afford no means for preventing their commission. The courts of equity, on the other hand, by way of injunction, extend their protection not only to equitable rights, but to those also for the actual violation of which, damages may be recovered at law. They interfere, in short, in every case in which, if the defendant were suffered to proceed in the commission of the injury, there would be no adequate remedy at law.

There can be no good reason why courts of law should not restrain violations of legal rights in the cases in which an injunction might issue for that purpose from a court of equity. And it is accordingly suggested in the report, that a party injured should not only be entitled to maintain an action; but that he should be permitted to claim the prohibition of a wrongful act commenced or threatened, either separately or together with a claim for damages for any injury he may have already sustained.

Parliament withheld from the Courts of Law the powers with which it was recommended they should be entrusted. The Procedure Act of 1854 only enables a plaintiff in all cases of breach of contract or other injury, where he is entitled to maintain, and has brought an action, to claim an injunction against the repetition or continuance of such breach of contract or other injury, or the committal of any

breach of contract or other injury of a like kind, arising out of the same contract, or relating to the same property or right.

"It is necessary therefore, as the law at present stands, "to wait until a wrongful act has actually been commenced, so that an action for damages may be maintained, before "application can be made for an injunction to a Court of "Common Law, whereas the danger of such an injury is

enough to found the jurisdiction of the Court of Chancery. "This seems unreasonable, when it is considered that the 66 right threatened to be violated exists at the Common Law, "and that in case of actual injury, redress is given in a "Common Law Court, and not in the Court of Chancery, "and that after the wrong has actually commenced, an in"junction may be obtained in a Common Law Court against "its repetition or continuance, or the committal of an injury "of a like kind; and yet that, in case of threatened and impending injury to a similar right, it is necessary to resort "to the Court of Chancery." (Third Report, p. 1.) The legislature has not acted upon this unanswerable reasoning. It has however, on the other hand, enabled the Courts of Equity to award damages, and to assess them by a jury! (21 & 22 Vict. c. 27.) Parliament has thus, in cases originally of legal cognizance, granted to the Court of Chancery what it has refused to the Courts of Law, namely, that power which every court ought to possess within itself, of administering complete justice within its jurisdiction.

The writ of injunction is to be claimed by indorsement on the writ, and again in the declaration; but it may be applied for at any time after writ ex parte, and granted or declined upon such terms as may seem reasonable and just.

Before leaving the subject of pleading, it may be observed that the defendant in an action on a bond or in detinue, and the plaintiff in replevin (in answer to an avowry), are by the

See also the masterly memorial of the Common Law Commissioners (Cockburn, C. J., Martin, B., and Bramwell, B.) addressed to the Lord Chancellor in answer to some curious observations officiously made upon their 3rd Report by the Vice-Chancellors.

statute of 1860 enabled to pay money into court, the advantages of which course will be explained under the sections which confer this privilege.

THE BILLS OF Exchange Act, 1855.

The amendments introduced into our system of pleading by the Common Law Procedure Act of 1852, did nothing to prevent frivolous or vexatious defences being set-up and persisted in against a just claim merely for the sake of delay. Every defendant might, and in most cases may still, enter an appearance in any action against him, and plead nonliability, thus compelling the plaintiff to proceed in the ordinary course to trial, verdict, judgment and execution. The extent to which this system of false pleading was carried in the case of Bills of Exchange and Promissory Notes led to complaints by the class of persons who are ordinarily holders of bills, and who loudly contended that they ought to be constituted a privileged class of creditors, and were so fortunate as to get their claim admitted. "The Bills of Exchange Act, 1855," was accordingly passed, and its chief feature is that the defendant, in an action brought under that statute, which is commenced by a writ in a form peculiar to itself, must either bring the amount claimed into court, or obtain the leave of a judge to appear before he can be allowed to do so. This leave he can only obtain by setting out the nature of his defence in an affidavit, so that the judge may form an opinion not only as to its validity in point of law, but also as its bona fides in point of fact. Where leave is refused there can be no pleading, and judgment follows as in the case of default of appearance.

JOINDER OF ACTIONS.

Connected with the subject of pleading, one other amendment effected by the statute of 1852 may be mentioned, that relating to the joinder of different causes of action.

The forms of action hitherto in general use, and still recognized under the provisions of various acts of parliament, especially the Statutes of Limitation, are,-Assumpsit, Debt, Covenant, Detinue, Trespass, and Case.

It was a strict rule of law that no two of these forms should be joined in one action (except that debt might be joined with detinue, and case with trover), so that a claim against a tenant for breach of a covenant to repair in a lease under seal, and a further claim against him for non-repair of another house let by agreement not under seal, must have formed the subject of two actions, one of covenant and the other of assumpsit. Illustrations of the operation of the rule might easily be multiplied.

It was unreasonable that a plaintiff should be compelled to bring two actions, when the different causes of complaint might, without inconvenience, be combined in one proceeding, as when he had one claim on a bond and another on a bill of exchange, or sought redress for slander and assault against the same person. The rule was therefore altered in 1852, and, except in real actions, and actions began by writ of summons issued under the Bills of Exchange Act, a plaintiff may now join in one and the same action all his causes of complaint. To prevent any inconvenience which, in particular cases, might ensue from a joint trial of several causes of action, the court has power to prevent the trial of different causes of action together; if such trial would be inexpedient; and in such cases to direct separate trials. Replevin and ejectment, however, cannot be joined together, or with any other form of action.

JURY PROCESS.

Having provided one uniform process for commencing personal actions, and having restored our system of pleading to its ancient simplicity, the statute of 1852, upon which, it may be observed in passing, all succeeding improvements are to be grafted, next dealt with the procedure of the courts preliminary to trial. It abolished some needless formalities connected with the entry of causes for trial, substituted for writs of distringas and habeas corpora juratorum a simple precept directing the attendance of the jury; and provided an inexpensive method of obtaining a special jury, by notice to the sheriff. None of these amendments call for any We come, therefore, at once to the im

special remark.