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execution, similar to the proceeding known in London and Bristol as the process of foreign attachment. Several alterations in the practice of the courts, supplementary to those introduced by "The Common Law Procedure Act, 1852," are also effected by this Act,* which is founded in a great measure on the recommendations contained in the Second Report of the recentlyappointed Common Law Commissioners. To that Report I shall accordingly have frequent occasion to refer.

The most important provisions in the statute are those which extend the jurisdiction of the Superior Courts of Common Law. I shall endeavour, consequently, to explain, in the first place, the nature and extent of the powers thus conferred on these courts, which may now exercise what have hitherto been the peculiar functions of the Courts of Equity, and compel the SPECIFIC PERFORMANCE of contracts and duties-restrain by WRIT OF INJUNCTION the committal of a breach of contract or other injury of a like kind, and obtain for the suitor a DISCOVERY of documents and facts, in the knowledge only of his adversary.

The equitable jurisdiction, which has thus been conferred on the Common Law Courts, would nevertheless have done little for litigants, had not the statute further enabled the defendant to plead an EQUITABLE DEFENCE, and the plaintiff in his replication to avoid a plea upon equitable grounds. If the provisions of the Act to this effect are carried out to their full and legitimate extent, they will go far to effect in a safe and efficient manner what has been termed of late years the fusion of law and equity. At all events the Superior Courts of Law have now the power, in many cases, to do complete justice between the

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parties, without forcing on either the necessity of a resort to the Court of Chancery.

Having explained the nature of the extended jurisdiction of the Superior Courts, I shall describe the several alterations introduced by the statute, with reference to the trial of issues of fact. The parties to an action may now in certain cases have the cause tried by a judge sitting alone without a jury; and a reference to arbitration may be made at any time before the trial, by order of the court or a judge, on the application of either of the parties to the action. The other changes are chiefly in the practice of the courts, and their object and effect is to give an appeal against the decision of the courts, on motions for a new trial, or for leave to enter a verdict or nonsuit, and on special cases. It will be recollected, that in order to be able to resort to a Court of Error, it has hitherto been necessary to tender a bill of exceptions, or to obtain from the jury a special verdict.


Some changes have been effected in the practice relating to the numerous incidental applications which may be made in the course of a suit, and which must be founded on affidavits. I shall shortly refer to these, and to the new process of execution which I have already mentioned. shall then point out the alterations introduced in the rules relating to the examination of witnesses; and conclude by briefly calling attention to several sections in the Act, which cannot be left unnoticed, as they affect the most recent amendments in the procedure of the Superior Courts of Common Law.



THE jurisdiction of the Court of Chancery extends over many matters entirely beyond the cognizance of the Common Law. It represents the Crown as parens patriæ, in the guardianship of infauts and lunatics, and in the superintendence of charities. In other cases it exercises a jurisdiction conferred by statute, as in the control of money deposited on the formation of public companies; and in proceedings under Part IX. of "The Merchant Shipping Act, 1854," for the protection of shipowners against liability beyond the value of the ship and freight.* In the majority of instances, the equitable jurisdiction of the Court of Chancery is exercised over matters with which the Common Law Courts do not interfere; but in some cases Courts of Equity either furnish a more complete remedy in respect of common law rights, or actually restrain the exercise of such rights on equitable grounds.

Where the Courts of Common Law and Equity operate upon the same subject-matter in different ways, by applying different forms of remedy, or, to speak more properly, different portions of a complete remedy for the same injury, a consolidation of all the elements of that complete remedy in the same court is obviously essential,

"The Merchant Shipping Act, 1854," re-enacts, in part, the "Act to limit the Responsibility of Shipowners in certain Cases," 53 Geo. III., c. 159.

in order to constitute a consistent and indeed a Specific Perrational system of procedure. In those cases, formance. therefore, in which Courts of Common Law have hitherto afforded insufficient protection against, or awarded only an inadequate remedy for, the infraction of legal rights, the supplemental powers exercised by Courts of Equity have been added to the principal jurisdiction of the Superior Courts of Common Law. This has been effected by an extension of the remedy hitherto obtained in special cases by the writ of mandamus, in the manner I am about to explain.

Practically all personal actions have but one aim, compensation in damages for the wrong complained of. In quare impedit and dower as in ejectment, the judgment is that the plaintiff recover the land claimed. In replevin, if the plaintiff obtains a verdict, he retains in his possession the chattels restored to him, when he gave security for their return. In the action of detinue, again, the plaintiff in form recovers the specific chattels sued for or their value; but as the defendant might hitherto have paid the value of them, this action was not strictly a means of recovering specific chattels.* In all other actions, the sole effect of the verdict and judgment has hitherto been to procure a stipulated debt or a sum in name of damages.

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"It is, however, beyond all question that, in very many cases, money compensation, after a "loss or wrong has been sustained, is a very inadequate remedy, and one which falls very "far short of what complete justice requires. It "is obvious that where obligations are imposed


*The court may now order that execution shall issue for the return of the chattel detained, without giving the defendant the option of retaining such chattel upon paying the value assessed (s. 78).

Specific Performance.

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by the law, or undertaken by the act of parties, "the party on whose behalf they are created has a right to insist on the specific performance of "the acts which have been undertaken for his "benefit, where such acts are capable of being performed, and where money would not be a "perfect compensation for their nonperformance; and, in like manner, that where an injury is "about to be committed for which a mere money payment would not be a full and perfect re"dress, a power should exist of anticipating and "prohibiting the wrongful act."-(Second Report, p. 39.)



These defects of the common law being left unredressed, the Court of Chancery stepped in to supply the remedy; and for a long period it has in many cases of common law obligations and rights, enforced a specific performance, and in many other cases of legal wrongs commenced or threatened, prohibited the commission of wrongful acts.

Where a public inconvenience or a private wrong is occasioned by the omission of a public duty, and no sufficient remedy is afforded by an action for damages, a writ of mandamus may be obtained to compel the performance of the particular duty. This mode of proceeding, which is peculiar to the Court of Queen's Bench, was originally confined in its operation to a limited class of cases affecting the administration of public affairs; such as the election of corporate officers, or compelling inferior courts to proceed in matters within their jurisdiction, or public officers to perform duties imposed upon them, as to make a rate and the like.

In more recent times, the remedy has been extended to cases in which the rights of private individuals only are concerned. In every session of Parliament a number of Acts are passed for making railways, docks, bridges, improving towns,

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