"FUSION OF LAW AND EQUITY.".

Colonist, Volume III, Issue 264, 1 May 1860, Page 4

"FUSION OF LAW AND EQUITY.".

.. y ... (From the London Spectator.)

No passage in her Majesty's Speech from the throne is more calculated to cheer the legal reformer, than that in which she suggests "such a further fusion of Law and Equity as may be necessary to insure that, in every suit, the rights of the parties maybe determined by the court in which the suit is commenced." But few persons, indeed, out of the profession of the law, are aware that there two jurisdictions in operation in England, which if they do nofc always contradict each other, at all events have

Hot uufrequently rendered each other inoperative. Those who possess the knowledge of this difference generally have had to purchase it hy a bill of costs.

Law is a rule of action, certain and definite, and is administered by statute and precedent. Equity is also a rule, but it is laid down after the events have occurred which calls for its decision, and it applies not so much as a guide for the future, because ifc is tempered by considerations less affecting the rights of mankind in general, as those of the particular suitors who have sought its exposition. But it is difficult to obtain an accurate definition of the two jurisdictions ; so difficult indeed that even legal writers are lost in describing their landmarks. "Equity softens the rigor of the law," is a maxim so often quoted, that in the popular mind it is supposed to be possessed of power to enforce natural justice, statutes and laws immemorial notwithstanding. No view can be more unsound, for Equity is as much bound by ihe acts of the Legislature, as is the common Law : Dr. Johnson, however, responsible for much of Ihe popular error, for he has defined the Court „pf Equity as au institution where "the Chancellor had power to temper the written law, arid subjecteth himself only to the law of nature aud conscience." Another writer, Sir James Macintosh, represents Equity as differing from Common Law in its subject, but chiefly varying in its modes of trial, proof, and relief. Biackstono denies that it is the duty of Equity to soften the rigor of tho law ; and, he asserts, that a Court of Law determines in the spirit of the rule, aud nofc according to the strictness of the letter. When the very foundations of the distinctions between the two courts are thus matters of controversy, it is not at all astonishing that the result of the practice, , down.to the present time, has been uncertainty, j useless litigation, and—costs. So great an authority as Mr. Justice Buller once said—" For the plaintiff several cases were quoted'from the Court of Chancery, to whioh my answer is that .none of them is of the least avail in a Court of Law because the two courts act on different principles, and that which is the groundwork and foundation of the decisions of Courts of Equity is directly repugnant to every rule and determination of Courts of Law." Can anything be more absurd than the continuance of two jurisdictions upon the same subject since Buller's time ? Granting that Law is right aud Equity wrong; that men should be governed by an universal rule of action; how much of injustice has 'been committed by Equity, upon pretence of exercising jurisdiction over the litigants, apart from the universal rule. Selden, in his "Table Talk," says, and he appears to be justified by our subsequent experience, V Equity io a roguish thing. Eor Law we liave a measure. Equity is according to-the conscience of him who .is Chancellor, —and as that is larger or narrower so is equity. It is all one,as if they should make the standard for tho measure we call a foot ' a Chancellor's Foot.' What an uncertain measure this would he. One Chancellor had a long foot, another a short foot, a third au indifferent foot. It is the same thing with the Chancellor's conscience." Siuce Seldon's time, we admit, the consciences of Chancellors have widened in their operation ; mi even Mr. Justice Story, one of the greatest of writers ou jurisprudence, tells us, " that an imperfect notion of what, in England, constitutes equity jurisprudence, is not only common among those who are bred to the profession, but has often led to mistakes and confusion in professional treatises.1'

Willingly allowing the exclusive jurisdiction of Equity in matters of quest account, settlements, dowers, specific performance of agreements and covenants, aud many other subjects in which tho Courts of Law have_ never interfered, we yet think we havo arrived afc that point in civilization when ifc is necessary to amalgamate the powers of the two jurisdictions ou subjects common to them both, It is impossible to.havo recourse to two courts to obtain justice ; as, for instance to have to go to Common Law for damages sustained by a wrong, and to Equity to restrain the wrongdoer from future violence. Surely, without any great violation of the constitution, we may ask that if a jury gives ns damages for a wrong done, the judge may grant an injunction agaiust our wrongdoer. In matters of law, the courts, by tha Common Law Procedure Act 1854, have obtained power of discovery and injunction, which havebeeumost .usefully exercised in the promotion of right; and the success of that experiment ought to embolden us to go as far as common powtrs to teach court upou matters with which both deal.

Not the least part of the evil of this confusion of jurisdiction is the uncertainty which it produces. Let a man have never so clear a case in Law, he is liable to be checkmated by Equity. Hence a person who has contracted to do an act in the ordinary way of commerce, and in view ofthe common sense'prevalent a,3 the law which governs each transactions, is encouraged to search in the armoury of Equity for a weapon tp overthrow his creditor. The case of Mr. Thiedamann, who sought to escape the payment of his own acceptances by recourse to au injunction to restrain tbe holder proceeding to recover at law, is iv point. On the.other hand, a vendor dealing with a firm of two or more persons, gives credit upon the appearances, means, and connexions- of each and all of the partners, and he is .justified in so doing, for the Law upon which im makes his contract of sale, tells him he is entitled to seize the property aud persons of all his debtors, and so pay himself in iull. But if fche debtors appeal to Equity, they can protect their separate estates, and so pay their friendly creditors, and turn the creditor out ot possession, leaving him to take a dividend out of the "joint estate."' There is "a ceseon the books" where the joint assets devisable amongst creditors, to whom thousands were owing, amounted to £21., whilst the assets belonging to the "separate estates" of the partners promised payment in full.

Nor is this all. Two Schools of Thought in Jurisprudence are maintained, not free from the blemishes of jealoußy and innovation. Lincoln's Inn and the Temple naturally feel a certain amount of contempt for each other. The narrowaainded tut acute, special pleader, rejoices in

the certajuty with which he can construct a dinner which shall be au answer in Law, whilst tbe Equity draftsman is equally jubilant when the opportunity serves to "file a bill" and get an injunction to restrain a plaintiff seeking the operation of law to remedy injustice. Lawyers by professing are ceasing to be lawyers in fact. Each School produces subdivisions of labor, by which great acuteness aad corresponding narrowness is produced. In fact the lower rank of the profession, and particularly the attornies in the provinces, are becoming the best lawyers we have, because they are continually called upon to exercise their power upon all subjects, and have not the time allowed thera, to run into the differential mazes of Law and Equity.

The present is a precious opportunity of restoring the law to its ancient supremacy as a well understood, or at least easily accessible, rule of action. If we cannot have codification, at least we may have simplification. Our expanding commerce and ceaseless iudustry requires abolition of all refined distinctions between jurisdictions. The more commonly rights are understood, the more willingly will obligations be fulfilled. But contradiction, obscurity, and uncertainty in jurisprudence are likely to produce their complements of cunning, falsity, and deceit, whilst if the remedies are certain, the consequence will be candour,' straightforwardness, and honesty. No people ever required a knowledge or their laws so much as we do, and none ever possessed less. Even tbe Chinese, who have only sixteen discourses of law, are enjoined by the eighth to a general acquaintance with the penal laws, which are printed in a cheap form for their use. And the Norwegian peasant can carry about with him a portable volume which gives him a general acquaintance with the laws he is bound to obey. We hope for no such cheap luxury in England, but we prefer the' humbler request that if we may not have a code, we may at least be saved from the increasing evil of uncertainty of jurisdiction. If it is not possible for Victoria to be immortalized like Csesar, Justinian, Charlemagne, or Napoleon, who bequeathed codes to posterity, at least she may have the glory that in her time the conflicts of jurisdiction disappeared and speedy and certain remedies in law gave an impetus to civilization.