The Sun.
London, England, 1860-06-23 00:00:00

PRIVATE BUSINESS.

The Milford Haven Railway and Docks, the Maccles-
field Gas, the London, Brighton, and South Coast Rail-
way (deviations and new lines) Bills were read a second
time.

The following bills were read a third time and passed :
The Edgbaston Road ; Bolton and St. Helen's Road ;
Leeds Township ; Stockport, Disley, and Whaley Bridge ;
Newcastle-upon.• Tyne and Carlisle Railway; Port Carlisle
and Silloth Bay Railway and Docks; and Mid Wales
Railway.

LAW OF EQUITY BILL.
The LORD CHANCELLOR, in rising pursuant to
notice to move that this bill be referred to a select commit
tee, said their lordships had now to determine what course
to take upon this very important bill, which had been read
a second time without a division. He ought, perhaps, to
apologise for the delay which had occurred in again bring-
ing the bill under their lordships' notice,_ which arcse from
a communication he bad received from the Lord Chief Jus-
tice of England and his brethren, who acted as commissioners
to inquire into the practice and procedure of the courts of
common law. On the other hand, the equity judges pre-
sented a memorial, which he had laid before their lordships,
in which they expressed their disapproval of the bill. He
hoped be need not assure their lordships that he had a sin-
cere and profound respect for the equity judges, which had
been increased since he had the honour of associating with
them. They were most learned, honourable, and devoted
public functionaries, and he rejoiced that he had always
been able to act with them with the most perfect harmony.
Their opinion being hostile to the bill, it would be impossible
to act on the report of the common law judges, without giv-
ing them an opportunity of considering the amendments
made in the bill. Then objections would be found in the me-
morial which he most earnestly implored their lordships to
read, since it was written with great ability, and deserved
their deepest attention. The question was whether any fur-
ther equity jurisdiction should be given to the courts of com-
mon law. He trusted that their lordships would have no ob-
jection to the course he proposed, which was to refer the
bill to a select committee, consisting of all the law lords and
as many lay lords as would do them the honour of attending.
He regretted to hear that his noble and learned friend (Lord
St. Leonards) intended to oppose the bill, and it therefore
became his duty to offer a few observations to their lords
ships. A monstrous misapprehension existed on this sub-
ject. People supposed that the bill was meant to destroy
the Court of Chancery, that it established a new and dan-
gerous innovation, and would lead to fatal consequences.
But the principle was laid down by the Equity Commis-
sioners, that equity jurisdiction should be given to the courts
of common law, so as to enable them to bring to a conclu-
sion the causes that originated in those courts. The prin-
ciple briefly might be expressed in the words " One Court
for one cause." If an equitable defence arose in a court of
common law the bill proposed to give that court the power
of deciding the question, so that the parties might not be
put to the expense of going before another tribunal, of en-
gaging another staff of counsel, and of being subjected to
the expense and vexation of a double litigation. From an
early time a portion of equitable jurisdiction had been con-
ferred upon the courts of common law, which had always
been exercised beneficially. So long ago as the reign of Wil-
liam 111. and Queen Anne, an equity jurisdiction had been
given to the courts of common law, with respect to actions
on bonds of indemnity. In the reign of George 11. this
equitable jurisdiction had been further extended. Where
there used to be no mode of proceeding save by filing a bill
in equity, the parties, by recent legislation, were mutually
examined, the one by the other, and the necessity of appeal-
ing to a court of equity had been entirely obviated. It was
the aim of the present measure to give a further equitable
jurisdiction to the courts of common law. The bill ex-
tended to courts of law the jurisdiction enjoyed by courts
of equity in cases of forfeiture from non-payment of debts.
By the Act of George IT., the courts of common law had a
right to grant relief before trial. After trial, however, they
had no right to interfere. The forfeiture took place, the
lease had been broken, and the tenant might be ejected.
The court of equity had jurisdiction in similar cases for six
months after the trial, and why should it be necessary to ap-
peal to the court of equity when the action had been brought
in the court of law, and when that court was as well able
to form a judgment on the case as the court of equity ?
There was another ground for extending the jurisdiction of
the courts of law of the greatest importance. There was
at present no protection to property during litigation,
and it might be destroyed and rendered useless by
one of the parties, without the court having power to inter-
fere. It was essentially necessary to apply to a court of
equity in such cases ; but by the bill it was proposed to
give the common law courts power to protect the property
during litigation. The next point—it was provided that in-
junctions might be granted in cases where damage was
committed, and there was a provision also by which condi-
tional relief might be allowed to parties on application to
the court in which the action was raised. Various other
changes were proposed which ho hoped would meet the ap-
probation of their lordships. He believed all the powers
4iven to the common law courts by the bill could be safely
end beneficially conferred on them. It was objected that if
this bill were to pass all equity rights would be brought
into the courts of common law, but that would not be so ;
for it was only where legal rights had to be recovered in a
court of common law that the provisions of the bill would
come into operation. Another objection was taken to the
form of appeal ; but there would always be the ultimate ap-
peal to the House of Lords, and their lordships would have
an ample opportunity of reviewing any decision that was
brought under their notice. The last objection of which he
had any knowledge was, that the common law judges were
not competent to dispose of questions of equity. That was
a very delicate point ; but Lord Chief ?ustice Cockburn and
two of his learned brethren had declared their belief that
the suggestion of incompetency was perfectly unfounded.
Those learned judges bad no interested motives ; they had
quite enough to do at present, but they were willing and
able to administer the law in an extended shape. The sub-
ject, however, was one that could be better discussed in a
select committee than in the whole house, and therefore he
should propose that the bill be referred to a select committee.
Lord LYNDHURST—I apprehend the only question at
present is whether this bill shall be referred to a select com -
mittee or not. I cannot understand how it is possible to put
a negativelupon the motion. I object to many parts of the bill,
but what do I find is its present position? It has been read a
second time. There are upon. your lordships' table opi-
nions from the equity judges adverse to the bill. We have
also upon the table the opinions of common law judges in
support of the bill, and in answer to the objections of the
equity judges. Before we can take any further steps we
must discuss these different opinions, and we cannot dis-
cuss them in this house. The question is too difficult, too
complicated to be dealt with here, and we must of necessity
refer it to a select committee. I most strongly recommend
your lordships to accede to the motion of my hon. and
learzed friend upon the woolsack (Hear, hear.)
Lord ST. LEONARDS said it had been his intention to
divide:the house upon the question of the second reading,
but having been prevented from doing so he wished to take
the present opportunity of taking their lorships' opinions
upon the principle of the bill. If their lordships were pre-
pared to say that the equity jurisdiction should be extended
to the courts of common law, theu there could be no objec-
tion to referring the bill to a select committee, in order to
frame clauses that would best carry out the intention. But,
if this house should be of .opinionlthat the equity juris-
diction ought not to be extended to the courts of law,
then there would be no necessity for a select committee.
The bill came before them in an extraordinary shape.
It had been referred to the Master of the Rolls and
the three Vice-Chancellors, who unanimously reported
against it, and the two Lords Justices, although it had not
been referred to them, wrote a letter condemning the bill in
strong terms. The noble and learned lord on the woolsack
then referred to the Common Law Commissioners. Those
gentlemen were four in number, and were all barristers at
the date of their appointments, but since then three of them
had become judges, and those three judges, excluding Mr.
Walton, the fourth commissioner, made the report which
his noble and learned friend had referred to. The fact was
that the common law judges had not the knowledge which
was necessary to enable them to discharge these duties.
Equity differed from the law in this respect. An equity
lawyer must make himself partially acquainted, at f4sven_ts_,
with a great portion of the common law, espeoutliY
that affecting property. He must do so because, according-
el law.
B the familiar maxim, equity followed the law and gave re
IBi euf t againstyou
must and
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was
before
you you could give relief against it, so would
it befound that
lawyer who was not imbued
there was no first-rate equity
with a fair knowledge of the common law. The common law
judges, however, had only to administer the common law ;
and, that being so, equity was to them utterly unimportant,
except as a science which they might perhaps wish to know
something about. They had not to found themselves upon
the principles of equity ; they had not to give relief against
the practice of equity ; and he hoped they would take no offence
when he said that they were not, and could not be expected
to be good equity judges. Yet their lordships were asked to
transfer a great mass of equity business to the common law
courts. At present, if a man sold an estate, stipulating
that the purchaser should be prepared with his conveyance
and his money by the 10th of July, and if difficulties arose
in consequence of which the purchaser was not prepared
by the 10th of July, the seller could immediately bring
an a'tion in a court of law and recover damages; for
time, in law, was of the essence of the contract. In equity
just the reverse was the case, and unless it was expressly
declared that time should be of the essence of the contract,
or unless it could be shown that the purchaser had been
guilty of unnecessary and wanton delay, equity would stop
the action at law, decreeing specific performance of the con-
tract between the parties. But if this bill passed, and the
vendor brought his action, a court of common law must
first decide, according to its own rule, that time was, and
afterwards must decide that time was not of the essence of
the contract. It would decree a specific
out having the slightest means of carry
and it would inevitably break down in the P
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