The Sun.
London, England, 1860-04-28 00:00:00

LAW AND BQU/21' BILL.

Amidst the variety of opinions expressed by the
law lords last Tuesday on what is called the Law
and Equity Bill, there was- happily one point in
which all concurred. The Lord Chancellor declared
that this was the crisis of Law Reform, and both
Lord Cranworth, who supported the second read-
ing, and those who opposed it, admitted that the
subject was of pre-eminent importance. The point
of the discussion is clear enough, but it must be con-
fessed that more heat and temper have been dis-
played than the gravity and dignity of the subject
might have led one to anticipate. The principle
seems to be conceded that the court in which a
cause is begun should if possible be able to admi-
nister complete justice between the litigant parties.
In the desirability of this everybody who has
patiently examined the subject concurs; and ac-
cordingly the aim of a large portion of this Law
and Equity Bill, which has justobeen referred to a
select committee, is to enable courts of law to do
complete justice—in other words, to clothe Courts
of Common Law with such powers as shall enable
them to dispense with the necessity which at present
exists of calling in the aid of Courts of Equity.
It is remarkable that the Equity Commissioners
pointed out some years ago the mischief
which arose from having several distinct courts
with different systems of law, which in some
cases brought them into antagonism with each
other. It often happened, they said, that parties
in the course of a suit were driven backwards
and forwards from courts of law to courts of
equity, and vice versa. The defendant in an ac-
tion at law, who had a just ground of defence,
was often obliged to resort to equity to control
the decision of a court of law, or to restrain the
plaintiff from proceeding to obtain a judgment
which could not be permitted by a court of
equity. Again, a court of common law had no
power for the preservation of property pending
litigation ; but the Court of Chancery possessed
such power, and suitors using the common law
courts were driven to the other courts in order
to avail themselves of the power possessed by
these courts. Such was the statement of the
Equity Judges—Sir John Romilly, Lord Justice
Turner, and Sir W. Page Wood. That view was
confirmed by the Common Law Judges. In the
last report, signed by the Lord Chief Justice and
three judges, they advocate the propriety of
clothing the common law courts with such addi-
tional powers as shall " prevent the necessity for
a resort by either party to two courts for the
purpose of obtaining complete justice." Such
being the opinions of the bench, both equity and
common law, of the bar, and of such men as Sir
James Graham and Mr. Henley, it might have
been expected that if any bill were introduced
for the purpose of carrying the principles so
clearly enunciated into effect, it would have met
with approbation. Such, indeed, was the purpose
of the Law and Equity Bill, and its provisions
do no more than attempt to carry into
.practical
effect the recommendations of the Commissioners ;
and knowing as the public now do that it was
drawn by Mr. Justice Willes, one of the most
eminent jurists upon the bench, there was good
ground for supposing that it would prove not quite
impracticable. The effect, however, which its
appearance has produced is almost staitling. The
equity judges—some of whom actually signed
the report to which allusion has been made, and
which contained the principle upon which the
Law and Equity Bill is founded—have as it were
risen in insurrection against the Chancellor, and
have preiented a remonstrance against the bill
which has been laid before Parliament. In that
document, however, the judges do not confine
themselves to points of detail, but in apparent con-
tradiction to the former recommendation of some
of them they seem to question the principle that
one court should be armed with powers enabling it
to do complete justice. Many of the law lords,
especially Lord St. Leonards, adopt the same view.
Ignoring the principle just mentioned altogether,
they insist that England has grown great under
the existing system, and that nothing can exceed
the economy and perfection of the present adminis-
tration of justice.
If the objections to this Law and Equity Bill
had been objections to its machinery there would
have been much reason in them, for it must be ad-
mitted that England contains no more able lawyers
than those who took part in Tuesday night's debate.
Bat they seemed to assail the principle upon which
the bill was founded, and to treat the proposed
reform as a mere fancy. If the opposition had
beon as moderate and reasonable as Lord Cran-
worth's, nothing need have been said upon the
matter. He pointed out, as no doubt is the case,
that to attempt a complete fusion of law and equity
is unnecessary, even if it were possible.il Its
into
m
enough if a suitor can obtain fro te courti
which lie is first brought completeled jtoustaice.ly Ifta
aa
man brings an action to recover
a house or a piece
opponent
of land, why should he be compel
court of equity in order to p
who happens to be in possession,,n all the trees ?
down the house or cutting down
Why should not the same courretvhichfroisinnt his pp
pulling,
to deter-
mine who is the rightful owner, al so protect the
property—the subject in dispute—in the mean-
time ? Is it seriously said to be impossible to draw
a bill which shall enable courts to do complete

justice without, as some of the lords insist, intro-
ducing chaos into the well-ordered domain of
law? Certain it is that many of. the ablest.jurists
regard this task as by no means impossible. At
all events, it must be admitted that the distil ction
between Law and Equity exists in no other system
of jurisprudence on the face of the earth—for evtn
the Americans have abolished it. The distinction
is purely artificial, it is not founded in the nature of
things, and should, therefore, prevent no insuper-
able bstacle to the practical application of the
principle so often mentioned—of enabling a single
court to do complete justice. .
It will be the duty of the select committee to en-
deavour to solve the difficulty proposed. As the
equity judges have criticised the bill, it might be
well that the common law judges should be requested
to ansWer this critique. The discussion must bo
useful. In the meantime, it can hardly be neecss-
sary to deprecate any spirit of antagonism between
the professors of two branches of English law. .It
must be admitted that the establishment of County
Courts was certainly delayed by a somewhat un-
worthy ckead lest they might diminish the amount
of legal business. That fear was not unfounded.
A desire ampliare jurisdictionem is a proverbial
weakness with judges. But it can hardly be sup-
posed that any professional prejudice of this sort,
or any fear lest the common lawyers should receive
an addition to the amount of business at the expense
of their equity brethren, will in any degree bias
those 'eminent men' who have reached the serene
heights of the peerage against conferring on coal-
mon law courts any additional powers which may
be required.—Daily News.