The Sun.
London, England, 1860-04-25 00:00:00

to the question whether it is necessary to adopt the proce-
dure of the Court of Chancery in cases where it is proposed
to borrow from its remedies ; and we have arrived at the
conclusion, strengthened by an experience of the working of
the Common Law Procedure Act of 18.54, that the desired
object ran be attained as effectually, and with less expense,
by means of the ordinary proceedings of the common law
•arts."

This report having been presented to her Majesty, no time
was lost to carry it into execution. The bill of which he
now moved the second reading had been framed entirely
and exclusively on the suggestions of those eminent lawyers
the commissioners. The bill, for which he took no merit,
was drawn by Mr. Justice Willes. Ho had introduced it
without altering a single line. It was approved by all the
common law judges. But the equity judges, including the
Master of the Rolls and Lords Justices Knight Bruce and
Turner signed a memorial against any further fusion of law
and equity. He should not ask their lordships to pass this
bill unless the objections of the equity judges could be ob-
viated, and therefore he proposed, if the bill wore read a second
time, to have it immediately referred to a select committee.
Lord Chief Justice Cockburn had assured him that after
having carefully considered the question he did not believe
those objections to be tenable, and Justice "Wines was of a
similar opinion. He should net enter in detail into the pro-
visions of the bill, but ho might observe that in those cases
in which a court of equity possessed the right on fixed prin-
ciples to grant relief against the forfeiture of leases, and an
ejectment was brought by the landlord against the tenant,
relief was sought to be afforded by dispensing with the pre-
sent dilatory proceedings. The noble and learned lord con-
cluded by moving the second reading of the bill.

Lord ST. LEONARDS opposed the second reading. The
measure had for its main object an alteration is the present

jurisdiction in law and equity, and it was called a bill for the:
fusion of law and equity. He thought it might more properly
be called a bill for the confusion of law and equity, for it
proposed to give to one court powers which could be more
properly exercised by another tribunal. The bill emanated
from the report of the Common Law Commissioners, and his
noble and learned friend had taken especial care to inform
their lordships that he (the Lord Chancellor) had not
altered one line in it, and therefore he was in no respect
answerable for its framing. Ho must draw the attention of
his noble and learned friend to this question, whether the
commissioners ought to have made the report in question ?
It appeared to him that the learned commissioners had
gone beyond their power in entering upon the subject of
equitable jurisdiction. He did not see the necessity for al-
teration, for never in any country was there a code of law,
Roman or any other, by means of which justice could be had
more cheaply or more promptly than ix the courts of equity
as at present administered. The law courts were already
overwhelmed with business, and therefore he wondered that
his noble and learned friend had brought forward this bill,
seeing that he had so recently introduced a divorce bill,the
object of which was to relieve the common law judges of some
of their work. The consequence of this bill would be that
the courts of equity would be half idle, whilst the law courts
would have too much to do. Another more important mat.
ter to be considered was the machinery of these courts.
They were so constituted as efficiently to per form their work
but he would defy them to do the business which was about
to be transferred to them from another. There was, how-
ever, a still more serious question, and that was whence to
derive the necessary knowledge. The law judges were most
efficient in their own branches, but they knew nothing of
equity, and the consequence would be a constant conflict of
decisions instead of the satisfactory code we had at present.
Why, even in the Batik of England there was a separate
department for the Court of Chancery. Did they mean to
have a separate establishment for each court, or did they
mean to entrust it to an individual who might appropriate
it, as had happened before ? The fact was that the bill pro-
posed to give the common law judges a power which they
had before possessed, and which they had practically relin-
qxished as being incompatible with their general jurisdiction.
If there was one thing more than another to which he had a
great objection it was that of driving suitors into arbitra-
tion. A case might arise in which the accounts might be
difficult to deal with by the court, and if so the attorneys
immediately suggested that it was a case for reference.
Counsel were called to consider it, and they joinedin saying
it must be referred, and thus the poor unhappy suitor was
forced into an arbitration, which, he believed, was a poor
way of obtaining justice. But such things as accounts were
not difficult to wind up in the Court of Chancery. There
the whole law was administered. A good deal was often
said as to what took place in America, and he had thought
it his duty to look into the matter. He found that formerly
the equity jurisdictions were in the most deplorable condi-
tion possible, and the delays in the transaction of the busi-
ness of the courts occasioned vast expense. But what was
done there? Why, they made the courts of law courts of
equity, and the same judge sat in both cases. He first heard
the question of law and then he heard the question of
equity. This country once had a court which had jurisdic-
tion in matters of equity and law, namely, the Court of
Exchequer. What became of that court ? Why, equity
was administered so unsatisfactorily in it that all men be-
came dissatisfied with the court, and it was resolved to get
rid of the equitable jurisdiction, and an Act of Parliament
put an end to that part of the court. He need scarcely say
that in doing that a vast expense was thrown on the coun-
try for compensation. Now it was desired to go back to the
old system. Then why not revive the old Court of Exche-
quer ? The fact was, in this country the system of fusion,
as it was called, had been tried and it had failed. He would
ask their lordships to bear in mind a good 'old maxim—
" Leave well alone." He firmly believed that if they dis-
turbed the jurisdiction of the courts they would destroy or
weaken them. They could not obtain a better than was
already possessed in the Courts of Chancery. The clauses
of this bill surprised him, and it was felt by every lawyer in
and out of the house that it ought not to be passed. On his
suggestion it had been thought advisable to refer the bill to
the working equity judges ; and the reason he suggested that
was that the report, of which this bill was the mere echo, was
by common law judges without the assistance of a single
equity judge. If there had been a single equity judge on
that commission they would not have had the same report.
However, the bill had been referred for the consideration
of the equity judges, and their report was upon the table.
The unanimous and unreserved opinion of the four equity
judges—the Master of the Rolls and the three Vice-Chan-
cellors—was a full condemnation of the bill. That opinion
was expressed in sound, sober, and clear reasoning, and
there was not a single word in it which he could not adopt.
The four judges condemned the --ehole scheme of the mea-
sure. There were two other learned judges in equity;
they had not been referred to by his noble and learned
friend, but both of them had expressed their utter dislike to
this bill. There were seven judges in equity, who deal
with mixed cases of law and equity every day of their lives,
and they, with the exception of his noble and learned friend
on the woolsack, were unanimous against this bill ; and
with all respect to his noble and learned friend, he might
observe that he was new t the court and new to the juris
diction, for he had recently come from a court of law, which
he 111.1 adorned for so Img a period. He concurred in the
opinion expressed by the equity judges, that this bill should
not be, passed, and therefore he should move an amendment
that it be read a second time that day six months.
Lord CR:I.N wou'ru said the professed object of the
bill was to effect a great improvement in the law, and he
hoped their lordships would well consider it. The measure
was certainly in every part of it not all that was desirable.
Ile thought it would prove a great advantage if suitors
were to have the opportunity of having their cases decid2d
in the court in which the action was brought without being
driven by tke forms of law into other courts bet'ore a final
decision could be come to, but he agreed with his noble and
learned friend who last addressed the house that there were
certain equitable clauses in the bill which ought to be sub-
jected to the most rigid consideration. With regard to
the suggestion that the bill ought to be submitted to a
select committee, he thought that also a question for fur-
ther consideration. Why was it that one court could not
at present transact the same class of business ? It was
because the two classes of courts required different
machinery. Some parts of the bill he certainly approved
or, but he did not see how a single machinery could be de-
o iced by which the measure would work for the benefit of
suitors. In the general scope of the bill he concurred ; but
in its details it was susceptible of, and ought to receive,
much amendment. By this bill, it was proposed to enact
that a party should be able to obtain an ex parte injunction
upon what was called a summons from the judge at cham-
bers. At present, such injunctions were only granted by
the Court of Chancery to prevent irreparable mischief.
Upon a bill and affidavit disclosing all the circumstances,
both for and against the party applying, no such security
would, as he understood the bill, be obtained under the pre-
sent measure. If injunctions were to be granted by judges
at chambers during vacation, it might be several weeks
before parties considering thorns Aves aggrieved had an
opportunity of applying to a court of common law for
their dissolution. lie had felt it his duty to state his
views upon these subjects to their lordships, but at the
same time, the bill contained a great many useful provi-
sions, and he, therefore, hoped that it would be read a second
time. They could then determine whether it was more de-
sirable to have its provisions considered by a committee ;of •
their lordships' house, cr by a select committee. - -
Lord KINOSDOWN said that no bill more impottantin
its consequence than this had ever been laid before their
lordships, because, whether rightly or wrongly, it would
subvert the system of law which had prevailed in England
for 200 years, and would introduce into the administration
of justice a confnaintx and an uncertaintythe
to which na-
tion had hitherto happily been a stranger. The distinctionbetween law and equity arose from the circumstance tat
any system of jurisprudence which pretended to effect jus-
tice, must apply different remedies to the assertion of
different rights, and to the redress of different wrongs.
The evil which was proposed to be remedied by this
bill, and which the report of the learned commissioners
suggested required a remedy, was not that the system
administered by the Court of Chancery required to be
altered, not that it was wrong., not that it failed to do justice
—but that it would be more efFwiently applied by courts
other than those to which its administration wfts now ea-
'trusted. It was said that the science of law was one, and
ought therefore to be admiuistered by a single court. ; The
same observation might, however, be made with regard to
11.6111 military and medical science, yet both these sciences
were applied to practical purposes by different classes of
persons. Having pointed out the expense and delay which