tleman more particularly to this matter, a great omission in this Bill, with respect because he had made some laudable efforts to the kind of judgment that might be to correct the law by giving the Courts of pronounced in an action under its operaCommon Law power to give relief in cases tion. In Equity a suitor, if successful, of lost bills and instruments, and also by obtained such a decree as he asked for, or allowing equitable defences to actions of as the court thought just; but at Common ejectment. He had also given the Com- Law the Court could only give a strict. mon Law Courts the power of setting aside technical judgment. Now as the technical inequitable legal defences, such as those judgment followed the technical division of founded on outstanding legal estates. He actions, now that the forms of action were (Mr. Lowe) thought it could hardly be abolished, he wished to know how the denied, that if that principle were good for Court was to be directed in its judgment. anything, it was good for a great deal He entreated the hon. and learned Genmore than that. If the hon. and learned tleman to consider the few observaGentleman set the distinction of Law and tions he had taken the liberty of making, Equity aside in these matters, was it not and to endeavour to put the matters he by surprise or by mistake that he had not had referred to on a more satisfactory done so in matters of the highest impor- footing. tance? Either it was right to retain these forms of action, and to perpetuate his distinction of jurisdiction, or it was not. If not, then why do so in some few cases? But, if right to do so in respect to these, would it not be far better to do so in respect to all? Was it not monstrous that one set of courts should only recognise rights in the mortgagor, and another set of courts only in the mortgagee? That one should see no rights except in a trustee, and the other no rights except in the cestuique trust? That one should maintain, and the other should set aside transactions, on the very same facts? Surely, if the principle of giving to the Courts of Law equitable jurisdiction in some cases were good for anything, it was good for much more. He felt sure that the question could not rest here; and he ventured to hope that his hon. and learned Friend would be induced to see whether matters could not be carried further, and whether that great principle which had been advocated by Lord Mansfield, by Bentham, and by all the great lawyers who had given much attention to law reform, could not be accomplished, and the false and mischievous distinction between Law and Equity be for ever exploded. With regard to the alteration proposed in the form of procedure, he objected to the plan of making an abstract of the pleadings, as was proposed in this Bill, because, when parties had gone to the expense of pleading they had incurred enough cost, and the next best thing was to try the case, instead of which it was provided that an abstract of the pleadings should be made by the attorneys on both sides, if they could agree, and, if they could not agree, application was to be made to the Judge. This appeared to him to be objectionable, on the ground of expense. He perceived also SIR ALEXANDER COCKBURN said, he was very glad the hon. and learned Solicitor General for Ireland had brought in this measure, and he should regret much if the Bill should not be read a second time. At the same time he fully agreed with the hon. and learned Member (Mr. Fitzgerald), that it would be a great pity to prematurely hurry the Bill through Committee. He quite concurred in what had been just stated by the hon. and learned Member for Kidderminster (Mr. Lowe), namely, that the Bill now before the House was a great advance upon the English Common Law Procedure Bill of last Session, and thought he could point out the reason for this. The Common Law Commission recommended the abolition of the forms of action; but this important Amendment was abandoned, because certain judicial authorities were alarmed at the recommendation of the Commission going to such great length. We sometimes cut away the mast in order to save the ship, and, on that principle, it was found necessary to give up the proposed alteration. He very much regretted this, and now that the Government were prepared to go so far in the reform of the Irish Law, he trusted they would apply the same principle to the English Common Law. He willingly admitted that this Bill was an advance in other respects upon the Bill adopted in accordance with the Report of the Commission of which he had the honour of being a member. They had thought it necessary to deal with the incidents of an action in its various stages; but the Commission were not prepared to stop there, and their recommendations would form the subject of a Report which would shortly be laid before the House, and in which would considered several most Law and Equity one-to abolish all distinctions between Law and Equity, and, as the consequence, all distinctions in their jurisdiction. He hoped they were all agreed on the great question of law reform, and alike anxious to discharge their duty as regarded it to the public. As a member of the profession, he might say he believed that from one end of Westminster Hall to the other, the necessity for legal reform was admitted-an admission. which, indeed, was, on the part of the profession, only an enlarged view of their own interest. They might depend upon which it was proposed to abolish, only prevented parties, who otherwise would go into Court from asserting their rights, and, he was certain, did absolute injury to the profession as well as to the public. important matters, which formed no part of the Bill of the hon. and learned Gentleman. They would probably propose that Courts of Law should give the effect of a Bill of Discovery by the examination of parties to a suit; and that the Common Law Courts should have power of discovery without any expense, not according to the form of procedure in the Courts of Equity, but by a simple process of oral discovery, bringing up the parties and giving the Judge the power of immediately striking out the pleadings. So with regard to the power of persons who had only an equitable right maintaining a legal ac-it that the cumbrous rules and methods tion; and alterations were also proposed in many other important respects. They proposed to introduce various Amendments, doing away with technical forms of action which had become obsolete and ought to be abolished. With regard to the jury MR. CROWDER said, he was exceedsystem, it was worthy of considerationingly happy to give his cordial vote in whether the plan adopted in the County favour of the second reading of this Bill, Courts, which had worked so well, should and he begged to congratulate the hon. not become a guide for the practice of the and learned Gentleman the Solicitor GeSuperior Courts-namely, that of allow-neral for Ireland upon the able manner ing parties, by consent, to deal with a in which he had brought it forward. question, either with or without a jury, as they liked. If parties consented to try their cause before a Judge in whom they both had confidence, they should not be compelled to have recourse to the more expensive and less satisfactory process of a jury. He believed that one of the reasons why County Courts worked so admirably was, that if any new matter turned up in the course of a case, the Judge, sitting from day to day in the discharge of his duties, was enabled to say, Come be fore me again to-morrow;" whereas with a jury the case must be gone through from beginning to end without adjournment, and the only remedy was to obtain, at immense expense, a new trial. A variety of subjects of this kind were under consideration, and would receive the best attention of the Commission, whose anxious desire was to make the procedure in the Courts of Common Law as complete and satisfactory as it could be made. He quite agreed with what had been said in favour of doing away with the distinction between the jurisdiction of the Courts of Law and Equity, the reason for the existence of which was, that the Legislature had in all ages abused the lawyers, instead of amending the Law, and that the Law, consequently, grew so stubborn and inflexible, that Equity crept in as a clumsy substitute, and a mode of doing ultimate justice. The first thing, therefore, was to make 66 The Bill in many respects was undoubtedly an improvement on that passed during the last Session for the Amendment of Common Law Procedure in England. His (Mr. Crowder's) only difficulty was to understand how the Law Officers of the Crown thought fit to pass the measure of last Session without the introduction of those very Amendments to which the attention of the House was now being directed, because they had not been discovered since the passing of that Act, for they had been suggested by members of the legal profession, and had even been discussed in that House. He fully concurred at the time in every one of those suggested improvements; but, nevertheless, no notice was taken of them on the second reading of the English Bill; and when the measure passed through Committee, the consequence was that they had a measure applied to the Common Law Courts of this country, which was decidedly inferior to that introduced on the present occasion to regulate the Common Law Procedure in Ireland. With respect to the abolition of the forms of action, he fully approved of that Amendment. It was stated that the Common Law Commission in their Report recommended the abolition of those forms, but that part of their recommendations was, nevertheless, not carried out, owing, as it appeared, to the expressed opinions of certain high judicial personages. He appre hended, however, that it was the duty of framing the English Bill, had not introduced those improvements into it. He still hoped, however, with his hon. and learned Friend the Member for Southampton (Sir A. Cockburn), that they would yet have those improvements in the English Law, and that the Law Officers of the Crown would introduce every species of reform consistent with the improved administration of the law, of which the present measure was such a favourable commencement. The ATTORNEY GENERAL said, he was desirous of receiving in a friendly spirit the observations of the hon. and learned Gentleman (Mr. Crowder), and quite agreed with him that his hon, and learned Friend the Solicitor General for Ireland deserved the gratitude of the House, not only for this measure itself, but for the very able and clear manner in which he had introduced it. But the hon. and learned Gentleman (Mr. Crowder), in making some very serious reflections upon the Law Officers of the Crown in England, had forgotten the circumstances under which they had charge of the Bill of last Session, which was said to be so deficient in its amendment of the Common Law Procedure in England, and the utter impossibility of making those additions which were proposed at the time. The hon. and learned Gentleman apparently had forgotten the impatience with which the Opposition side of the House had listened to any attempt to introduce any new measures, attributing to the Ministry that they were endeavouring to prolong the Session unnecessarily, and to disappoint the expectations formed of an early dissolution. This Common Law Procedure Bill came down from the Lords at a very late period of the Session. His hon. and learned Friend suggested various alterations in it, but whether he (the Attorney He General) agreed with them or not was perfectly immaterial; there appeared to be a great chance of losing the Bill altogether, and they were therefore obliged to hurry it through the House. He was thus not a free agent in the matter; he had no liberty of choice. It was important to pass the Bill even in an imperfect state, and he had trusted to future occasions to introduce improvements, to which it was impossible to attend at the time they were made. hon. and learned Friend said the Bill for Ireland was in advance of that for England, and seemed to feel a certain shame that it should be so. He must consider this, that in Ireland they had the opportu His nity of looking from the limits to which we advantage of the measure then before the had arrived, and must remember that even House was, that the form of pleadings, a dwarf, when on a giant's shoulders, saw which we had tried a long time in our farther than the giant. The Irish lawyers Courts of Common Law, had been found had had the benefit of English experience. wanting, and had, in the present Bill, been His hon. and learned Friend the Solicitor thrown aside and a new system adopted. General for Ireland had, he confessed in- He also approved highly of the clauses of troduced great improvements beyond those the Bill relating to County Courts, which they possessed in the English law; but the had been eminently successful, and had House must not believe for one moment afforded great satisfaction in this country. that he (the Attorney General) was not He also thought the clauses relating to quite prepared at the proper time to adopt equitable jurisdiction a great improvement; any improvements that could be made in and he concurred in the remark of his hon. the Common Law Procedure Act. With and learned Friend the Member for Kidregard to the forthcoming Report of the derminster (Mr. Lowe), that those who Commission, it would be necessary to con- had gone thus far in Law Reform must sider very carefully the amendments sug- consider whether they would not have to gested, and not to rush at once upon all go much farther. With respect to the those reforms which were recommended by fusion of Law and Equity, which some those ardent reformers who were among its thought so desirable, he concurred with members. The discussion upon which they those who said that there should be no were at present engaged was a very desul-rational distinction between them—that tory, although he hoped not an unprofit- Equity was merely an excrescence on our able one. The suggestions made as to system, arising from the imperfections in the working of this Bill were not now well our Law. But it was another question as timed, because the House was not discuss-regarded jurisdiction, or whether the two ing the details; they were only considering could not be amalgamated in one common the principle of the measure, and those tribunal. He could quite understand that hon. Gentlemen who agreed to the second it might be necessary to have different reading would have ample opportunities in Courts for a division of labour; but an Committee of suggesting the valuable im- anomaly which he apprehended was most provements which they had heard to-night. objectionable was this-to see two different He trusted the House would forgive him if tribunals adjudicating on one matter on he had been drawn away from the question different principles. The only satisfactory really before them. Let the Bill go to a law reform was that which would provide second reading, and when it went into that the jurisdiction of a Court should be Committee hon. Gentlemen could then sug- an entire and perfect jurisdiction. As an gest any alterations or improvements they example, he would put a case, suggested thought proper. He was sure they would by the hon. and learned Member for Southall come to the consideration of the ques- ampton (Sir A. Cockburn). Why was it tion in the same spirit-a desire to make that a Court of Common Law could award it as perfect and good a Bill as possible. damages for the non-performance of a conMR. COLLIER said, it was not his inten- tract, but could not enforce the payment tion to go into the details of the measure of those damages? Then, again, with before the House; he would only make a few regard to injunctions. He remembered a observations upon its principle. He quite case, tried before the present Lord Chief agreed with the hon. and learned Member Justice--it was the case of the convent at for Liskeard (Mr. Crowder), that the pre- Clapham, where the priests kept ringing sent measure was a very great improve- the bells to the great disturbance and anment on the Bill of last Session. He noyance of the neighbourhood. An action thought the hon. and learned Gentleman was brought against the priests, and dathe Attorney General somewhat misunder- mages were recovered; but it seemed a stood the observations of his hon. and learn- strange anomaly that though the Lord ed Friend the Member for Liskeard. Chief Justice could give damages, he could (Mr. Collier) did not understand that hon. not stop the bells, but they might go on and learned Member to cast any reflections ringing the bells for ever, subject only to on Her Majesty's Law Officers, but only com- as many actions as might be brought against plained that a similar measure, introduced them. Now, for the reasons he had given, for England, had fallen so very far short of it appeared to him that this Bill was framed that for Ireland. It seemed to him one great in a very comprehensive spirit, and he He hoped the alterations suggested would be made in Committee, and that even further progress would be speedily made in removing such other technicalities in our Law as are still left. SIR DENHAM NORREYS said, the only question seemed to be one of complaint, that the Irish should have had so much better a Bill than the English. He believed the Gentlemen opposite were anxious to give them cheap law and good; but why were they still unwilling that the jurisdiction of the Assistant Barristers' Courts in Ireland should be assimilated to the County Courts in England, and their jurisdiction extended from 407. to 50l.? He could not conceive why they should object to what seemed so obvious an improvement of the law of Ireland. learned Gentleman the Attorney General that the more they considered those changes the better. This Bill had been indebted to many eminent law reformers for several of its improvements, and he thought it would be rendered still more valuable at the present period when so much landed property in Ireland was changing hands. He should say, in conclusion, that they had also made considerable advances in the Court of Chancery in Ireland, where upwards of 1,500 summonses had been disposed of by summary proceeding for small amounts by the present Lord Chancellor of Ireland. MR. GEORGE said, he thought that the Comnion Law Procedure in this country and in Ireland ought to be completely assimilated, and he hoped that before the passing of the present Bill care would be taken to amend it in conformity with those improvements in the English system which it might be found desirable to adopt on the recommendation of the Commissioners, whose Report upon the subject would, it appeared, be published in a few days. There was nothing which could more effectually contribute to complete the union of the two countries than the perfect assimilation of their code of laws. MR. WHITESIDE said, he felt bound to make his acknowledgment of the very kind remarks made by various hon. Members on his Bill both in the House and out of the House. He also felt bound to say that he received the most important assistance in preparing that measure from several members of the English Bar. Mr. Willes had favoured him with many valuable suggestions, and his hon. and learned Friend the Attorney General had strongly MR. PHILLIMORE said, he felt much approved of the principle of the Bill. He gratified at the introduction of the Bill. therefore felt that he did not deserve him- He believed it was one of the most comself all the commendations which had been prehensive measures of Law reform that bestowed upon him respecting this mea- had ever been introduced into that House; sure. As to the principle alluded to by and he regretted sincerely that the English the hon. and learned Member for Kidder- lawyers had allowed the lawyers of the minster (Mr. Lowe), he (Mr. Whiteside) sister country to get so completely the had no authority to warrant him in adopt- start of them by the proposal of so imporing it. He could not break down the dis- tant and useful a Bill. It certainly was tinctions between the Courts of Law and necessary that pleadings should be verified, Equity. This Bill did not do that; but it but he entertained a strong objection to removed a great number of obstructions; the multiplication of oaths, and trusted it facilitated the proceedings; it cheapened that some form of declaration would be the proceedings; and it shortened the pro-adopted. He also thought that the form ceedings. His hon. and learned Friend of issue should be submitted to some authe Member for Ennis (Mr. J. D. Fitz- thorised officer, in order that it might be gerald) had taken several objections to the properly stated. Bill; but as those objections turned princi- MR. NAPIER said, he wished to make pally on the difference which would prevail an observation in reply to the suggestion between the Common Law Procedure in which had been offered by the hon. Barothis country and in Ireland, it was evident net the Member for Mallow (Sir D. Northat they would hereafter be obviated, for reys). The hon. Baronet said he wished it was the intention of the Law Officers of that the jurisdiction of the Assistant Barthe Crown in England to adopt hereafter risters' Courts in Ireland should be exany good which they might find in the pre- tended in the same way in which the jurissent measure. He rejoiced to hear that diction of the County Courts had of late such improvements as those suggested by years been extended in this country. the hon. and learned Member for South-Now he would remind the hon. Baronet ampton (Sir A. Cockburn) were to be that the present measure would afford the made; and he agreed with the hon. and means of obtaining cheap and speedy jus |