evils, Sir Erskine certainly resorts to a sweeping reform. He would, so far as India is concerned, do away with special pleading, and abolish the distinction between Law and Equity. He thus proposes his form of procedure:

1. All suits shall commence on the personal application of the party to the Judge, on oath if required, and a summons, or capias, shall thereupon issue.

2. On summons, &c., being served, the parties shall attend before the Judge in open Court; and if any matter shall appear to be in dispute, a day shall be fixed for the hearing, and the proceedings in the suit regulated.

3. All evidence shall be given vivâ voce, and the parties to the suit shall be examinable on oath at any stage of it; but, in certain cases, to be regulated by the Judges, the presence of witnesses and parties may be dispensed with, and evidence may be received in a written form.

4. In every case the Court shall decide on the principles of Law or Equity arising out of the facts, without reference to the form of suit.

5. All cases shall be decided on the merits, or adjourned till further facts can be procured to enable such decision.

32. I am unwilling to take up the time of the Law Commission by extending this already long paper, with details as to how this system could be made applicable to all the civil controversies which come before the Supreme Court, or by pointing out the rules which would have to be framed by the Judges, as to secure 1. Authentic records of proceedings, when necessary. II. The safe conduct of causes which require length of time for investigation.

m. Application of the machinery of the Court, so as to secure the interest of parties during the progress of the suit.

IV. Arrangements by which the expense and dilatoriness of the Master's office may be avoided.

The learned Judge, at any rate, shows that he is disinterested in these propositions.

34. Having thus given my opinion as to what the practice of the Court ought to be, I am now able, satisfactorily to myself, to answer the queries of the Law Commissioners. It will be seen that, according to the plan proposed, more work is thrown upon the Judges than has hitherto fallen to their lot; and undoubtedly it enters into my scheme, that one of the Judges should sit at least

four days a week throughout the year. But as I have shown that at present, not one-third of the Judge's time is occupied, and as I can safely say, for myself, that a life of idleness in this country has no charms to recommend it, I do not anticipate any objections on this score.

35. These frequent judicial sittings, however, would dispense with a great portion of the work that is now done out of Court, by the Master, the Prothonotary, the Examiner, and the Clerk of the Small Causes. Whatever judicial business is done by these officers, (and they all, at present, have some to perform,) would be much better done, more cheaply done, and more satisfactorily done, by the Judges in open Court; and what is done by these officers in mere routine business, would be, for the most part, abrogated by the simple procedure proposed. I conceive therefore that these four different offices might be abolished, or rather coalesced into one.

These reforms would, in the opinion of Sir Erskine Perry, render a great diminution and consolidation of offices proper, and possible.

Sir Henry Roper is favourable to some of these changes, but does not give them his entire concurrence.

Sir Lawrence Peel, the Chief Justice of India, in an elaborate paper, combats the opinions expressed by Sir Erskine Perry, but himself proposes a very large measure of reform. He considers that special pleading should be retained; but he thus addresses himself to the important question of abolishing the distinction between Law and Equity:—

The jurisdiction in Equity may be divided into —

3. Legal, but administered in Equity.

With respect to the first, where the principles of Equity are ascertained, and have in effect become a species of Law, there is no reason why they should be administered by a separate tribunal, and why they should not be transferred to a Court of Law. Then the anomaly of the same rights being enforced by one tribunal, and defeated by another, would be got rid of; and Courts of Equity would be relieved from a variety of matters, in which they in effect exercise a legal jurisdiction under another name.

Secondly, where the jurisdiction is concurrent, each would in some cases admit of improvement by a mutual transfer of their powers, so as to render each independent of the other. This has

been done in a few instances; as, for instance, by enabling a Court of Law to issue commissions to examine witnesses, and to entertain questions of interpleader. Another mode in which it might be done, would be by enabling Courts of Equity to try issues; and at Law to give a discovery, by directing the examination of the parties. If, however, evidence were to be received vivâ voce in all cases, on all sides of the Court, this larger improvement would render it unnecessary to introduce the partial amendment before referred to.

Thirdly, where the jurisdiction is Legal, but administered in Equity, as is the case with Account, Administration of Assets, &c., it is of little consequence whether it be retained or not, as the machinery must be retained, whatever be its denomination. This, however, might admit of some simplification. To pursue the above subjects more in detail, under different heads of jurisdiction in Equity:

Accident and Mistake. - Relief on these grounds might be given at Law; as, for instance, an action on a lost bill of exchange, giving indemnity. This principle has been applied by admitting an action on a lost bond or deed with an excuse for Profert. The relief against forfeitures and penalties might also be extended, as in the case of arrears of rent.

Mistakes in instruments might be corrected at Law as in Equity. Specific Performance. This might, to a considerable extent, be effected at Law. The principle is applied when a verdict for damage is given, reducible upon performance.

There seems to be no objection, upon principle, to the prosecution of an action at law upon an agreement for the purchase of real estate, claiming in the alternative a performance of the agreement, or damages, and to a conditional assessment of damages, with an option in the plaintiff to claim the specific performance. If a question arise as to title, it seems to me that the Court should itself determine the question of title, without any reference to the Master, unless the investigation were one of a protracted character. The examination of parties at law would be the substitute for a discovery in aid of a suit at law, where a ground was laid for a discovery on summary application to the Law Court.

Trusts should remain subject to the jurisdiction in Equity. A summary process would in most instances suffice, whether the object were simply an account or the construction of an instru

ment.

Dower and Partition. The jurisdiction in Equity being grounded on imperfection of powers in Courts of Law, there seems to be no ground for its retention. If retained, however, the pro

cess should be summary, as it is in partition in he Supreme Court, by one of its rules.

Account.

Unless the question involved the execution of a trust, there is no reason why resort should be had to Equity, the machinery on any side of the Court being capable of application on all its sides.

Infants and Lunatics.

The jurisdictions should be summary, and, in the latter case, without the expense of a commission, and the Court itself summoning before it all necessary witnesses.

Summary Jurisdiction. The institution of a regular suit is the great expense in Equity, as in the Ecclesiastical Courts. I think that a summary procedure might in most cases be instituted, as it has in some instances in the Ecclesiastical and Admiralty Courts. It is already exercised in Bankruptcy without inconvenience: it is given by several statutes, as in the case of infant trustees. By substituting summary proceeding for full proceeding and a regular suit, — by the substitution of vivâ voce evidence for written testimony, - by rendering a cross bill unnecessary, by the examination of parties now resorted to, in some instances, after decree, by adopting, with extensions, the practice, lately introduced at Law, of calling for admissions, -and by other modes of simplification, the burdensome character of a suit in equity might be destroyed; and the resort to that branch of jurisdiction, when necessary, would not be impeded, if not prevented altogether, by a dread of the expense and protracted litigation, to which an equity suit now gives rise. I will conclude these observations by observing, that for a considerable part, and I doubt not the most valuable part, of those relating to Equity, I am indebted to Sir Henry Seton, between whose views, as to the reform of the system of Equity, and my own, I am glad to observe no material difference.

These opinions, proceeding, as they do, from the Indian Bench, are entitled to considerable respect; and we have thought it right to put our readers in possession of them. Of their peculiar applicability to that country we are not now to inquire. But allowing this, it is needless for us to say, that this by no means proves that the changes here suggested are proper to be introduced into England. Still we hail with great satisfaction the discussion from the Bench of these interesting questions, and rejoice to have lived to see the day when Judges consider it their duty not only to administer the law, but to endeavour to show what that law should be.

ART. XI.-LORD CHANCELLOR SUGDEN'S NEW CODE OF CHANCERY ORDERS.

ENGLISH AND IRISH EQUITY PROCEDURE COMPARED.

The General Orders of the Court of Chancery in Ireland, with practical and explanatory Notes. By WILLIAM SMITH, Esquire. Dublin, 1843.

THE passing generation has been the first generation since the Commonwealth which has held up legal improvement as an object of national pursuit. It has been an age of earnest desire for judicial reform, and yet of most misdirected effort. The huge accumulation of reports, and (so called) evidence, the crude and undigested heap of blue books of the last twenty years, and the unscientific incongruities and clumsiness of all our great efforts for discovering the hidden truths of the science of judicial procedure, will doubtless be the wonder and laughing-stock of the legal reformers of the next age. And well it may be so. What can be clearer, for instance, than that the first point to be accomplished in improving either law or procedure is to classify and consolidate, or, if you please to call it so, to codify, the statutes or rules in which they are respectively contained? As to the statute law, this perhaps cannot, practically speaking, be done at present. The Legislature is too blind as yet. But as to the rules of procedure, the judges may have it done any day they please. The equity courts of other countries have long since accomplished this end. In New York, the Chancellor is obliged not only to codify the rules of his Court, but to re-enact them every seven years, so that the odium of continuing an injurious regulation shall become personal on himself. In Ireland, the example has now been before us for two years, set by Sir E. Sugden, of one complete code of rules, carefully prepared. Sir E. Sugden has not contented himself with consolidating and arranging the rules of his Court,