CHANGES EFFECTED BY THE JUDICATURE ACT, 1873.

effected

The great change which was effected by the provisions of Changes the Judicature Act, which enabled every Division of the High by the Court to give all such remedies as any parties may be entitled Judicature to in respect of every legal or equitable claim properly brought Act. before the Court, is well illustrated by a case which came before the Court of Appeal in 1879. Certain goods had been taken in execution, and the trustee of a married lady's settlement claimed them as separate estate belonging to the lady. After certain proceedings in the Common Pleas Division the sheriff advertised the goods for sale, and an application was made to the Chancery Division asking, among other things, for an injunction to restrain the sheriff from selling the goods or remaining in possession of them. This order was granted by the judge of first instance, but when the case came before the Court of Appeal it was decided that an injunction restraining pending proceedings in a Common Law Court, was inconsistent with the provisions of the Judicature Act, 1873, s. 24, sub-s. 5, and could not stand. Lord Justice James, in delivering judgment, said:

"I am of opinion that if we were to sustain the order of the Vice-Chancellor, we should in fact nullify one of the most salutary provisions of the Judicature Act, and interfere with the cardinal principle of that Act, which was that there should never be conflicting proceedings going on at the same time in two branches of the Court. . . . . . These words are absolute, and are not qualified by anything that follows. To make it quite certain that no harm would be done by the abolition of such injunctions, sub-sect. 7 gives to every division of the High Court power to give all such remedies as any parties may be entitled to in respect of every legal or equitable claim properly brought before the Court. Any cestui que trust who has an equitable claim to bring forward must bring it forward in the division which is seised of the subject-matter, and third parties are not to be embarrassed in their proceedings because parties choose to create trusts" (1).

Again, in a case which came before the Court of Appeal in 1888, the question arose whether a judge of the Queen's Bench Division could make an order charging cash which stood to the credit of the debtor in the Chancery Division in the name of the Paymaster-General. Before the Judicature Act matters

(1) Per James, L.J., in Wright v. Redgrave, 11 Ch. D. (C.A.) 24.

stood in a singular position. A Court of Equity could assist the process of a Common Law Court; but a Common Law Court could not make an order charging cash in the hands of the Court of Chancery. The Court of Appeal decided the broad principle that any judge of the High Court has power, at the instance of a judgment creditor, to make an effectual order charging the judgment debt upon a sum of money standing to the credit of the judgment debtor in the name of the PaymasterGeneral in an action in the Chancery Division. All the judges of the High Court are placed by the Judicature Act in the same position. A judge of the Chancery Division can now make an order charging a judgment debt upon stock or shares belonging to the judgment debtor, and a judge of the Queen's Bench Division can charge cash under the control of the Chancery Division (1).

We pass on now to another portion of our subject. Law, according to the celebrated division of Bentham, falls under the two great heads of substantive and adjective law. Substantive law defines the rights, duties, and obligations of parties. Adjective law deals with procedure, the mode of proof and the means of securing redress. Substantive law comprises the law which the Courts are established to administer. Adjective law embraces the rules according to which the substantive law is administered (2).

The substantive law administered by the High Court having been considered, so far as the limits of our space will allow, in the books devoted to Contracts, Torts, and Equity, we shall proceed to consider adjective law in the books which deal with Practice and Evidence. The remainder of Volume II. is devoted to the consideration of Bankruptcy, of the business assigned to the Probate, Divorce, and Admiralty Division, of Ecclesiastical Law, and, last of all, of Criminal Law.

As it will be necessary for us in the progress of this work before we come to that portion of it which is specially devoted to the practice of the Courts, to refer to the terms which are employed in the course of an action, it will be desirable here to state the ordinary steps which are employed during its course. The first step in the action, the delivery of the plaintiff's writ, is commonly followed by the delivery of a statement of claim

(1) Brereton v. Edwards, 21 Q. B.D. 488.

(2) See Austin's Jurisprudence, vol. ii. pp. 611 and 791, et seq., where

this division and that implied in the phrase actio non est jus sed medium jus persequendi are criticised.

in which he sets forth the material facts on which he relies, and specifies the particular relief which he claims. The next step in the action is the delivery of the defence of the defendant, which may in some cases be accompanied by a counter-claim. To this the plaintiff may deliver a reply, and occasionally, though rarely, other pleadings are delivered (see post, p. 733).

It may be pointed out that the old practice in divorce is specially preserved by the Judicature Rules, and that proceedings are there commenced by petition (post, p. 1040). Proceedings in bankruptcy are also commenced by petition (post, p. 895).

Definition of contracts.

Judgment.

Recogni

zances.

BOOK III.

CONTRACTS.

CHAPTER I.

DIFFERENT CLASSES OF CONTRACTS.

Contracts.-A contract is defined by Blackstone to be an agreement upon sufficient consideration to do or not to do a particular thing." It has also been well defined by Sir W. Anson as "an agreement enforceable at law, made between two or more persons, by which rights are acquired by one or more to acts or forbearances on the part of the other or others."

66

All contracts are divided by the law of England into: (1) Contracts of Record; (2) Specialty Contracts, or Contracts under Seal; and, (3) Simple Contracts (1).

CONTRACTS OF RECORD.

Contracts of record which have been characterized by Blackstone as contracts of the highest nature, being established by the sentence of a Court of Judicature, are judgment and recognizance (2).

'A judgment," says Sir W. Anson, "awarding a sum of money to one of two litigants, either by way of damages or for costs, lays an obligation upon the other to pay the sum awarded. This obligation may come into existence as the final result of litigation when the Court pronounces judgment, or it may be created by agreement between the parties before litigation has commenced, or during its continuance. In the latter case, certain formalities are required by the law, viz. either a warrant of attorney, by which one party gives authority to the other to enter judgment upon terms settled, or a cognovit actionem, by which the one party acknowledges the right of the other in respect of the pending dispute, and then gives a similar authority." Recognizances are contracts made with the Crown in its

(1) Rann v. Hughes, 7 T. R. 350.

(2) The phrase "contracts of record," says Sir W. Anson, is unfortunate, because it suggests that the obligation springs from agreement, whereas it is really imposed upon the parties ab extra. Statutes

Merchant and Staple and recognizances, in the nature of statute staple, which are usually enumerated under the head of Contracts of Record, are now completely obsolete. Smith on Contracts, p. 3, last edition.

judicial capacity, by which the party binds himself to the Queen in a certain sum conditioned for the performance of a duty imposed upon him. Recognizances, where they become due are estreated.

of record.

The peculiar characteristic of contracts of record are: (1) that Contracts they prove themselves, i.e. their bare production suffices as evidence; (2) they operate by way of merger, i.e. all previously existing rights with which the judgment deals are extinguished by it; (3) they may be discharged by a release or instrument under seal; (4) they work by estoppel, i.e. they conclusively bind those persons against whom they are producible (see post, p. 862).

The doctrine of "merger may be illustrated by a recent case where it was held that an unsatisfied judgment against one joint contractor on a bill of exchange given by him alone for the joint debt, was a bar to an action against the other joint contractor on the original contract.

"The principle of the maxim, 'Nemo debet bis vexari,' ;'" said Field, J., "applies not only to the case of one individual being sued twice for the same cause of action, but also the case of a person suing twice on the same contract. Here the plaintiffs have converted the liability on the joint contract into a liability on a judgment, so that they had a security of a higher nature than the mere right to recover on the contract, and, therefore, the maxim⚫ Transit in rem judicatam' applies. The contract is merged in the judgment, and therefore the plaintiffs must fail" (1). In a subsequent case, however, it was held that this principle had no application to actions against husbands for their wives' ante-nuptial debts (2).

CONTRACTS UNDER SEAL.

A contract under seal is sometimes called a deed, and some- Contracts under seal. times a specialty. With regard to specialty contracts we will consider: (1) how they are made; (2) what are their characteristics; (3) what contracts must be made by deed.

I. HOW SPECIALTY CONTRACTS ARE MADE.

A deed is an instrument written or printed on paper or parchment, sealed by the party bound thereby, and delivered by him to or for the benefit of the person to whom the liability is

(1) Cambefort & Co. v. Chapman, 19 Q. B. D. 229; King v. Hoare, 13 M. & W. 494; and Kendall v. Hamilton, 4 App. Cas. 504, are leading

cases

on this subject. See also Arbuthnot v. Bulsiloll, 62 L. T. 234. (2) Beck v. Pierce, 23 Q. B. D. 316.