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

PRIVATE BUSINESS.

The following bills were read a second time .:—Sheffield
Water, East Somerset Railway, I3agnelstown and Wexford
Railway, and Shrewsbury and Welehpoc.)l Railway.
• The Brecon and Merthyr Junction Railway Bill was read
a third thou and passed.
GALASHIELS AND PEEBLES. RAILWAY BILL.
On the motion of the Earl of EGLIN TON this bill was
ordered to be re-committed.
LAW AND EQUITY BILL.
The LORD CHANCELLOR (who was indistinctly
heard), in moving the second reading of this bill, said that
we had arrived at a crisis in law reform, and the question
now was whether there should be a further fusion of law
and equity. That subject had been committed to the care-
ful attention of Parliament in the speech delivered from the
Throne at the commencement of the session, with a view to
enable the courts of common law finally to determine in a
satisfactory manner any case which might be duly brought
before them. There prevailed in this country what he be-
lieved was unknown in any other civilised.State—a distinc-
tion between the law administered in one tribunal and the
law administered in another. That had arisen from what
he must call the narrow-minded and technical decisions of

of the common law judges in former times. Justice having
been denied to the subject in the courts of common law it
Lecime necessary to apply to another tribunal. Another
tribunal was constituted, from which the most important
advantages were derived by the country ; he meant the
Court of Chancery. The great men who had presided in
that court had constructed a most beautiful system of juris-
prudence, the admiration of the whole world. For many
genet ations a conflict went on between the courts on one side
of Westminster-hall and the courts on the other, and Lcrd
Mansfield made an attempt to bring about some reconcilia-
tion. But that jurist incurred great obloquy for his endea-
vours, because it had unhappily been the practice of the law
courts for centuries before to regard their respective rules
as absolute perfection. He remembered, indeed, that when
he himself entered the profession the equitable doctrines of
Lord Mansfield were sneered at and contemned. Thus things
continued until fortunately a commission was appointed.
by her Majesty to consider what improvements could be
made in the courts of equity. The commission consisted
of cmaine,nt men—viz., Sir J. Hominy, Lord Justice Tur-
ner, Sir W. P. Weed, Mr. Justice Crompton, Sir R.
Bethell, Sir J. Graham, Mr. Henley, Mr. J. Parker, and
Mr. W. M. James. Their recommendations, as far as the
courts of equity were concerned, had been almost entirely
carried into effect ; but he was sorry to say that in the com-
mon law courts much yet remained to be done. The com-
mission took the most enlightened view of the subject and
offered most valuable suggestions. In the report which
they presented to her Majesty in 18:52 they stated :
" The mischiefs which arise from the system of several
distinct courts proceeding on distinct and, in some cases,
antagonistic principles, are extensive and deep rooted.
These mischiefs, we believe, have arisen in part from the
different principles by which the different courts are go-
verned, and the different systems of law from which those
principles are derived, and in part f coin inherent defects in
the powers of the several courts. . . It happens that, in
many cases, parties in the course of the same litigation are
driven backwards and forwards front courts of law to courts
of equity, and from cop-ts of equity to courts of law. A
defendant in an action at law, who has a just ground of de-
fence, is often obliged to resort to equity to control the de-
cision of a court of law, or to restrain the plaintiff at law
from proceeding to obtain a judgment which cannot in
equity be permitted to be available. . . Again, courts of
law have no powers for the preservation of property pend-
ing litigation. A court et equity has such powers ; and
parties suing in courts of law are thus frequently driven
mto equity for the preservation of the property pending the
suit at law."

The commissioners laid down principles which he wished to
see adopted. They said, " It is obviously most desirable that
in every case the court which has the cognisance of the
matter in dispute should be able to give complete relief."
Having then discussed the various remedies which had been
suggested they continued :

" We have arrived at the conclusion that without abo-

lishing the distinction between law and equity, or blend-
ing the courts into one court of universal jurisdiction,
a practical and effectual remedy for many of the evils
in question may be found in such a transfer, or blend-
ing of jurisdiction, coupled with such other practical
amendments as will render each court competent to admi-
nister complete justice in the cases which fall under it s
cognisance. We think that the jurisdiction now exercised
by the courts of equity may be conferred upon courts of
law, and that the jurisdiction now exercised by cow ts of
law may be conferred upon courts of equity to such au ex-
tent as to render both courts competent to administer en-
tire justice without the parties in the one court being ob-
liged to resort to the aid of the other."

There the ground was laid down on which this bill was
founded—one cause and one court. It was not proposed
that a suit should be brought in the Court of Queen's
Bench against a trustee for breach of trust, or that an ac-

tion for assault and battery should be brought in the Court
of Chancery ; but that legal rights should be enforced in
the courts of common law, and, if equitable questions aros •
incidentally, that those courts, should have over to dis-
lose of them without entailing on the parties the necessity
of going to another tribunal, employing another set of
counsel, and thus incurring infinite delay and expense.
His learned friend, Sir It. Bethell, who was not only a
great advocate, but a profound jurist, in an address which
he delivered at the inauguration of the Juridicial Society in
1855, said :
" For above a century this country has exhibited the
anomalous spectacle of distinct tribunals acting upon anta-
gonistic principles and dispensing different qualities of jus-
tice. It is the rule and duty of the one set of court@ fre-
quently to refuse to recognise the real right of ownership,
to ignore defences and claims founded on the best esta •
injury
committed rules of justice : and the prevention of gross
committed in the name of law is made to depend upon the
other court being quick enough to overtake and arrest the
first in its career of acknowledged injustice, and prevent it
from deliberately committing wrong."
The commissioners who were appointed to inquire into the
common law procedure had reported on the same subjec',
and the country was deeply indebted to them for their la-
bours. Whatever might be thought of their suggestions re-
specting the equitable jurisdiction, their recommendations
for amending the pleading and process of the common law
courts would be generally admitted to have been most valu-
able. During the first nine months after the Procedure
Bill of 1852 came into operation, the rules granted by those
courts were reduced from 38,009 to 3,081, although a greater
number of actions were brought and depending. The Com-
mon Law Commissioners were Chief Justice Jervis, Chief
Justice Cockburn, Mr. Justice Willes, and Baron Bram-
well. In their second report, in 1852, the commissioners
stated :

" We think we shall not outstep the limits of our com-
mission by so far expressing our opinion, upon what is com-
monly 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 be
tween 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 pos-
sess, in all matters within their jurisdiction, the power to
give all the redress necessary to protect and vindicate com-
mon law rights and to prevent wrongs, whether existing or
likely to happen unless prevented."

They then went on to recommend specific improvements, on
which the present bill was partly founded. On the recom-
mendation of the commissioners jurisdiction was given to
the courts of common law in all cases where there was an
equitable defence ; but the courts of equity held that suitors
were not bound by the judgment where there was power
to set up an equitable defence; so that, if judgment were
given against them, they might go into a court of equity,
file a bill, and have the whole case tried over again. Sir
H. Cairns, a great ornament of the profession, had brought
in a bill which did give to the courts of equity the powers
that were required to do full justice to suitors who came
before them, whereas formerly it was necessary, wheel,
legal question arose, to go into a common law court, having
an issue directed to try the point. Sir H. Cairns's Act
enabled the court of equity to decide legal questions arising
in an equitable suit ; but he was sorry to say that the equity
judges were very reluctant to avail themselves of the power,
and it was often necessary in an equitable suit to resort to
an action in the common law courts to enforce a legal right,
and to incur great additional expense by employing two dis-
tinct sets of counsel. In their third report the Common
Law Commissioners, Cockburn, Martin, Willes, Bramwell,
and Walton, pointing out the evils and remedies, said :-
6, It is our intention and wish that the result of what i;
proposed should be engrafted upon and become part of the
common law, and that the distinction between common law
and Chancery law should be so far abolished. If, in addi-
tion to this, the Court of Chancery is prohibited from inter-
fering in cases where common law rights are thus rendered
capable of complete vindication in the courts of common
law, and in which, therefore, its interference will have be-
come useless, the greater part, if not the whole, of the field
of conflict will be done away with by confining the operation
of the courts respectively to subject-matters peculiar to
' each. Thoroughly to effect this it.is necessary to confer
upon common law courts power to give, in respect of rights
there recognised, all the protection and red
and ress
it iwhich at
present can be obtained in any jrsdiction, s upon.
this principle that we have acted in our suggestions. If they
be carried into effect there will no longer be the. spectacle of
jurisdictions imperfect in themselves_and clashing with one
another, but each court will be armed initself with.ts exclu-
sive jurisdiction over the subject-matter. within . cogni-
sance, and with full power to give all the protection and
redress which the law at present affords by means of a plu-
rality of suits. The conflict of jurisdiction will be done
away with, because the occasion for it will no longer exist;
We have only to acid that we have given our best attention