different masters, and viewed it in different lights, the most important benefits may be derived. What we suggest is, simply, that in order to enable English judges to determine soundly, they should have the means of knowing accurately the law they are administering, by the admission, in a permanent form, into the House of Lords of some accredited representative of the law of Scotland, to remove doubts, to correct misrepresentations, to simplify technicalities, to prevent unnecessary remits, to shorten long disquisitions by brief explanations, and thus to accelerate decisions and diminish expense."-pp. 17, 18.

There is given a critical notice of the list of Chancellors, from the period of the union with Scotland until the time of Lord Eldon. Some of these men, such as Cowper, Harcourt, Macclesfield, King, Talbot, York, Bathurst and others, who, from their position of Chancellor, had the right to review, and, if so minded, to reverse, the solemn decisions of the whole judges of Scotland, were utterly ignorant of even the most elementary knowledge of Scottish jurisprudence. But there are also some distinguished names. We select the testimony borne to a great one:

"At last comes the name of one-Lord Hardwicke (1737 to 1756), under whose sound and powerful direction it may be admitted, the system of appeals worked well. But how? and why? Lord Campbell answers the question most satisfactorily. That to which I mainly ascribe the brilliancy of the career on which he was entering, was the familiar knowledge he acquired of the Roman civil law. The taste for this study he is said to have contracted from the necessity of preparing himself first to argue as an advocate, and then to decide as a judge, appeals to the House of Lords from the Court of Session in Scotland. In that country, he found the Roman civil law regulating the enjoyment and succession of personal property, and even frequently alluded to by way of illustration in questions respecting entails. Like most English lawyers, in preparing for the bar, he had hardly paid the slightest attention to it. While attorney-general he was retained in many Scotch appeals, and for the occasion he was obliged to dip into the Pandects and commentaries on them; but although he had the discernment to discover the merit of these admirable compilations, it was not indispensably necessary for the discharge of his duty that he should examine them systematically, and his time was filled up with more urgent occupations. Now that he was to sit in the House of Lords as sole judge, to decide all the appeals from Scotland, he saw the necessity of making himself a profound Scotch lawyer, and he found that this was impossible without being a good civilian. Therefore, having gone through Mackenzie, Bankton and Stair, he regularly proceeded to the Corpus Juris Civilis, with Vinnius, Voet and other commentators, and his mind was thoroughly imbued with the truly equitable maxims of this noble jurisprudence.""

The "rugged Thurlow" is spoken kindly of, and we need not say that homage is paid to the names of Mansfield and Eldon.

The pamphlet proceeds to exhibit a sad catalogue of technical blunders and other more serious miscarriages by the House of Lords in their jurisdiction in the LAST resort of the law of Scotland; and winds up with the following allusion to a tender subject:

"One other remark forces itself on our notice, though we are aware that we are treading on delicate ground. It is needless to disguise that a considerable feeling of dissatisfaction prevails in Scotland with the unceremonious manner in which, in the Court of Appeal, the opinions of Scotch judges, and their conduct of cases, are treated; chiefly, perhaps, in the way of incidental remark or caustic commentary, in the course of the argument, but at times also embodied in a more deliberate form in the opinions of noble lords. We are convinced that this error-unintentional as it must be-requires only to be brought respectfully but candidly before the notice of the House of Lords to ensure its correction. Very different-unless our memory deceives us was the bearing of Lord Eldon; rebuking the errors of the court below without hesitation, but also without acerbity, without sarcasm; most guarded, indeed, in expression when he was most uncompromising in substance. Sapiens prætor offensionem vitat, æquabilitate decernendi, benevolentiam adjungit lenitati audiendi.' An opposite course may, for the moment, lower the Court of Session in public estimation; but assuredly it does not tend to elevate the Court of Appeal."

It is singular that the pamphlet says nothing about the delay in giving judgment, which we are told by the Law Review is the sole cause of the discontent that prevails on this subject in Scotland. The TRUTH must be told, the Scotch do not so much object to Lord Truro's delay. They are possibly willing to wait a little, if at last they procure the pure and orthodox administration of their own law. What they cry out against is the utter inefficiency and jurisprudential incompetence of the noble individuals who are put forward as their appeal judges.

We ask no apology for thus occupying our readers. There is a bad feeling in Scotland on this subject. And truly the Scotch have much to complain of in the treatment of them and their national concerns by the powers that be in this country. And at a time when the whole tendency of law reform accomplished and projected in England, is an entire assimilation to the Scotch. system, it seems especially ungracious that their sincere efforts. for the increased efficiency of their legal administration, and for the improved judicial capacity of the House of Lords, should be frustrated by influences which look too like the reflex shadowing of pride, and marred by inadmissible attributes, where all should be dignity, learning and candour.

VOL. XVI. NO. XXX.

G

ART. VIII.-FUSION OF LAW AND EQUITY-PROPOSED EQUITY COUNTY COURTS.

R. FIELD and the Law Amendment Society have sounded the tocsin somewhat loudly, and the older members of the profession have been a good deal startled at the boldness of Mr. Field's views and American experiences, and not less so at the countenance they have received from the numerous lawyers -many of them men of long standing and undoubted eminence -who compose that most active and useful body-The Law Amendment Society.

Mr. Field declared his views very fully to it in November last, and we extract the following passage from the Annual Report of the Proceedings of the Society on the subject:

"The information given on that occasion was so striking and important, that the council thought it demanded from them the utmost care and attention. They appointed the special committee alluded to to consider the whole subject; but they also instituted an inquiry in America as to the operation of the New York Code. In this they were assisted by Mr. Lawrence, the ambassador from the United States, who kindly undertook to forward the questions framed by the committee for the purpose of eliciting answers from persons the best qualified to give sound and impartial testimony. The council have continued to receive from many sources information on this subject, and a very considerable body of most valuable evidence has been collected. The result is, that the council now state their opinion to be, that this reform has been eminently successful. Eleven of the judges of the superior courts of the State of New York have expressed this sentiment,-one of them personally at a meeting of the Society on the 14th day of April last; and although this has not been confirmed by the unanimous opinion of the legal profession of that state (which was hardly to be expected), yet the council believe that the large majority of the Bar of New York, as well in number as in talent and eminence, have expressed a clear and unhesitating opinion in favour of the beneficial operation of the code. To this it should be added that the public have given their concurrence; and no better proof of the popularity of the new code, or the advantages expected to be derived from it, can be given, than its adoption by many other most intelligent States of the Union in which it has been carried by acclamation. It cannot be doubted that the distinction between law and equity will not long exist in any portion of the United States. But here the council are induced to ask a question of greater interest to the Society. How long will this distinction exist in in our own country? Since the proceedings of this Society have become known, the council have reason to suppose that in our colonial dependencies it cannot much longer endure. In the most

6

important dependency of the crown the chief justice has, in a private communication to your president, declared that he should be exceedingly glad to adopt the code,' which he thinks simple and practical. In another the chief justice, in a communication to a member of this Society, states his adherence in terms even warmer, and declares that this amalgamation of law and equity is the panacea for most of the defects in equity procedure. These opinions come from India; but the same conclusion is gaining ground in British North America, and in other portions of our colonial possessions where this anomalous distinction prevails. And even in England and Ireland the legislation of the present session has gone some way in conferring complete legal and equitable jurisdiction on the county courts. In Scotland this distinction between law and equity never existed; and the council, taking all this into consideration, beg to express their conviction, that it cannot long be preserved in the superior courts of England or Ireland; and to this they have been mainly guided by the first report of the special committee of this Society, which has, after great deliberation, come unanimously to the resolutions, that justice, whether it relates to matters of legal or equitable cognisance, may advantageously be administered by the same tribunal, and that all litigation, whether it relates to matters of legal or equitable cognisance, may be advantageously subjected to the same form of procedure.' The same committee are prepared to support this resolution by the outlines of a code of procedure. In expressing their confidence in this committee the council beg to state their conviction that there is no instrument better adapted for the investigations requisite for legal reform than the committees of this Society have shown themselves to be. They are not acquainted with any other machinery in this country capable of arriving at results so safely, so cheaply, and so speedily."

This is high praise. The great question still remained, however, to be discussed, namely, how far and quo modo we might advisably adopt a similar procedure here.

Accordingly, the matter underwent further discussion, and at the last meeting of the society, in December, the committee proposed that steps should be taken to insure, in either house, the moving an address to her Majesty, containing resolutions to the following effect:

"1. That the principles of law and equity ought to be administered in the same court and under the same system of procedure, the equitable rule in cases of conflict controlling the legal.

"2. That a paid commission ought to be forthwith appointed to prepare a code of procedure for the purpose of carrying out the above reform.

"Until such a code can be prepared, your committee are of opinion that the amalgamation of the jurisdictions should not be attempted; as they believe that it would be highly vexatious to introduce a system of provisional procedure, which would of necessity be extremely im

perfect, and would, moreover, be liable to be swept away just as it was beginning to be understood. Still there is no reason why law amendment should stand still during this period of preparation, for there are many important changes of procedure which are sure to be adopted in any system of fusion, and which, without introducing any embarrassment, could not fail to give much present relief to the suitors.

"Such alterations might be immediately effected by a number of short bills, which your committee suggest should be introduced into Parliament as early as possible after the recess.

"The following are some of the bills referred to:

"1. A bill to require all pleadings, whether at law or in equity, to be verified on oath, and to abolish all objections as to the form of pleadings, except the objection that they are calculated to embarrass or mislead.

"2. A bill to substitute, in all cases, vivá voce examinations for written interrogatories and the interrogating part of the bill in equity. "3. A bill to enable courts of common law to grant injunction and discovery, and to appoint a receiver.

"4. A bill to authorize judges at common law to try questions of fact without the intervention of a jury, unless either of the parties to the action should require such intervention, and to authorize judges in equity to try questions of fact with the intervention of a jury, if any of the parties to the suit should require such intervention.

"5. A bill to abolish motions in arrest of judgment and non obstante veredicto, and to enable parties who have demurred, and have had judgment against them, to plead over.

6. A bill to empower defendants in courts of law to set up equi

table defences.

"7. A bill to enable the parties to any action or suit, at any stage of the proceedings, to agree upon any question or questions, either of law or of fact, to be submitted to a court or jury, as decisive of the merits of the cause.

"8. A bill to consolidate and amend the law as applicable to commissions and mandamuses to examine witnesses.

"9. A bill to direct that the evidence which, under the present system in chancery, is taken by the examiners of the court, should henceforth be taken before the equity judge.

"10. A bill to abolish the rule in equity respecting the non-publication of evidence."

There is no doubt that some such bills are essential for smoothing the way, not for the ultimate fusion of the two branches of our judicature, but for the due administration of equity itself. Let us see if absolute fusion is really necessary to the object in view.

On the 17th of January, at the Law Amendment Society, on the motion of Mr. Stewart, the report of the Equity Committee on the procedure in the Master's Office was taken into con