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Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery, Part II

Published online by Cambridge University Press:  28 October 2011

Michael Lobban
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Extract

As demonstrated in Part I, the question of Chancery reform before 1827 was much debated in party terms and focused largely on Lord Eldon's shortcomings as a decision-maker. After Eldon's departure, it largely ceased to be a party-political issue, although by 1830 law reform in general was firmly on the political agenda. With Eldon gone, there was much common ground on the outlines of Chancery reform. This can be seen from the plan proposed in the Commons by the conservative Sir Edward Sugden in December 1830. Sugden suggested creating a court of appeal for equity, on which the Lord Chancellor, Master of the Rolls, Chief Baron, and Vice Chancellor would sit. He proposed reforms in the masters' offices, under which they would be paid salaries rather than fees, and he wanted masters to sit in open court, with limited judicial functions. He also advocated retrenchment of sinecures and the removal of payment by fees. These ideas were all echoed in the new reformist Chancellor Brougham's proposals for the court, which he elaborated in the spring of 1831.

Type
Forum: Reforming Chancery
Information
Law and History Review , Volume 22 , Issue 3 , Fall 2004 , pp. 565 - 599
Copyright
Copyright © the American Society for Legal History, Inc. 2004

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References

1. Parl. Debs., third sen, 1: 1268 (16 December 1830). One crucial difference was that Sugden opposed separating the bankruptcy from the equity jurisdiction, which was one of Brougham's first measures.

2. For the wider contexts of law reform, see my articles “Henry Brougham and Law Reform,” English Historical Review 115 (2000): 1184–1215 and “‘Old Wine in New Bottles’: The Concept and Practice of Law Reform, 1780–1830,” in Rethinking the Age of Reform: Britain 1780–1850, ed. Burns, Arthur and Innes, Joanna (Cambridge: Cambridge University Press, 2003), 114–35.CrossRefGoogle Scholar

3. Weston, H. W., Chancery Infamy; or a plea for an Anti-Chancery League (London: Effingham Wilson, 1850), 4Google Scholar; cf. [Cooper, Charles Purton] Lettres sur la cour de la chancellerie et quelques points de la jurisprudence angloise (London: Longman et Compagnie, 1827), 7.Google Scholar Until reforms piloted by Sugden in 1830 (1 Wm. 4 c. 36), stories abounded of poor suitors being jailed for contempt of Chancery, which was condemned as “the arch-invader” of people's liberty: Law Magazine 4 (1830): 410. See also Parl. Debs, new ser., 14: 1178 (Joseph Hume, 7 March 1826); ibid., 15: 298 (Hume, 18 April 1826); ibid., 22: 369 (Sir Edward Sudgen, 11 February 1830). See also Law Times 33 (1859): 233 for the death of a prisoner committed by Eldon for contempt of Chancery.

4. See Weston, Chancery Infamy, and Carpenter, William, The Equity Jurisdiction of the Court of Chancery (London: Effingham Wilson, 1850)Google Scholar; both reviewed in Law Review 13 (1850): 193–208. Weston had petitioned the Commons individually in 1850 complaining of delay in a Chancery case he was engaged in and calling for reforms; and in 1851 the Chancery Reform Association petitioned (with one formal signatory) for the abolition of the equity jurisdiction of the Chancery; while petitions for Chancery reform were also received from Aberystwyth and Exeter. By contrast, 1850 saw seven petitions for law reform from various law societies.

5. See, e.g., Lester, V. Markham, Victorian Insolvency: Bankruptcy, Imprisonment for Debt and Company Winding Up in Nineteenth-Century England (Oxford: Clarendon Press 1995), 64–67, 126ff.CrossRefGoogle Scholar

6. 19 & 20 Viet. cc. 60, 97.

7. See Law Times 28 (1856): 181, 251. For the Social Science Association, see Goldman, Lawrence, Science, Reform and Politics in Victorian Britain: The Social Science Association, 1857–1886 (Cambridge: Cambridge University Press, 2002).CrossRefGoogle Scholar

8. The Joint Stock Companies Act of 1844 (7 & 8 Viet, c. 110) set up a system of registered companies and was followed by the Joint Stock Companies Winding Up Act of 1848 (11 & 12 Viet. c. 45), which gave masters in Chancery powers (analogous to those held by commissioners of bankrupts) to wind up the affairs of companies and to appoint official assignees to control the assets of companies being wound up.

9. Lobban, “Henry Brougham,” 1193.

10. Legal Observer 23 (1841): 18.

11. The act was 3 & 4 Wm. 4 c. 94, which gave the powers for a five-year period. See also the comments in Legal Observer 23 (1841): 81

12. For instance, the Chancellor's informal commission consulted in 1841—42 with a committee set up by the Incorporated Law Society on how to reform the court. See Field's comments in Legal Observer 27 (1844): 238.

13. 2 & 3 Wm. IV cc. 111, 122.

14. Brougham wanted to retain a proportion of payment by fee, in order to stimulate exertion. However, he was defeated in the Commons on this, after the Select Committee on Chancery Offices favored salaries: P[arliamentary] P[apers] 1833 (685) XIV 1 at p. 3. In order to stimulate the masters, it was enacted that they provide annual returns of work done in their offices.

15. 3 & 4 Wm. IV. c. 94.

16. Parl. Debs., third ser., 20: 829 (22 August 1833). Further savings were to be effected in the masters' offices, including a cut of £14,000 in the total payments to be made to the masters.

17. See Legal Observer 6 (1833): 501; Field, E. W., Observations of a Solicitor on defects in the offices, practice, and system of costs of the Equity Courts (London: William Pickering, 1840), 23.Google Scholar

18. Field, Observations, 5.

19. Parl. Debs., third ser., 55: 1317 (5 August 1840).

20. 5 & 6 Viet. c. 103. This reform turned out to be the only concrete result of their deliberations; but it was itself urged on them by the profession: see Legal Observer 27 (1843): 177; Parl. Debs., third ser., 86: 186 (Sir F. Thesiger, 7 May 1846); Law Magazine 29 (1843): 308–35.

21. There was much anger at the detail: since the compensations were to be paid out of the Suitors Fee Fund, rather than out of the Consolidated Fund, their level was not determined by the Treasury (under 3 & 4 Viet, c. 94), but by orders issued on 6 December 1843 by the Lord Chancellor (under 5 & 6 Viet, c. 103). These orders based the calculation of compensations on an average of the receipts in their offices over the previous three years, an era agreed to have been one of unusually high receipts: Legal Observer 27 (1843): 145, 161, 193; ibid., 28 (1844): 1. Romilly claimed that the sworn clerks had for many years hidden the actual amount they received, fearing that the Chancellor would reduce their fees, and so obtained a higher level of compensation than they were really entitled to: Parl. Debs., third ser., 86: 211 (7 May 1846).

22. Legal Observer 25 (1842): 5.

23. W. H. Watson pointed out, when calling for a select committee in 1846, that the Chief Justice of England had a salary of £10,000 but only currently drew £8,000: Parl. Debs., third ser., 86: 181 (7 May 1846).

24. Law Times 23 (1854): 43. Though there was a great outcry over the sums these men received, it was generally overlooked that the purchasers of these offices continued to pay for them out of the compensations received: John Wainewright continued to pay one half of the compensation on the parts of the business he bought from S. H. Lewin to his personal representatives. PP 1846 (219) XXXIII 225, p. 67.

25. Nonetheless, by 1849, the number of offices paid by fees was relatively small: see Report from the Select Committee on Fees in Courts of Law and Equity PP 1849 (559) VIII.

26. These dividends ran to nearly £83,000 in 1842 and almost £100,000 three years later: PP1843 (64) XLIV 153; PP1846 (43) XXXIII 215. The Master of the Rolls and the Vice Chancellor of England were paid from the consolidated fund under 6 Geo. IV c. 84.

27. See Challinor, William, The Court of Chancery; Its inherent defects, as exhibited in its system of procedure and of fees; with suggestions for a remedy. Also an appendix, containing extracts from evidence taken before the select committee on fees, 2nd ed., (London: Stevens & Norton, 1849), 20Google Scholar; Letter from ‘R’ in Legal Observer 36 (1848): 427.

28. First Report of the Select Committee on Fees in Courts of Law and Equity, PP 1847–8 (158) XV.1, p. 148. A series of orders in the 1840s reduced fees on office copies. In 1846, Thesiger AG had put the saving to suitors, thanks to the reduced fees, at £16,000: Parl. Debs., third ser., 86: 191 (7 May 1846).

29. Using Aglionby's return, Pemberton had told the Commons in 1840 that in the previous year, the Sworn Clerks received some £60,000 in fees. Parl. Debs., third ser., 55: 1317 (5 August 1840). Field estimated their income at between £58,000 and £80,000 a year: Observations, 13ff.

30. PP 1847–48 (158) XV.1, pp. 146–49. See also Field's views at PP 1847 (643) VIII.25, p. 34; cf. Legal Observer 27 (1844): 225; and Law Review 7 (1848): 361–72.

31. Report from the Select Committee on Fees in Courts of Law and Equity: PP 1849 (559) VIII.289, xvii-xviii.

32. See PP 1847–8 (158) XV.1, pp. 1–5. However, the report in 1849 noted that junior clerks did demand payment for unnecessary “excuse copies”: PP 1849 (559) VIII.289, p. 11.

33. See Second Report of the Select Committee on Fees in Courts of Law and Equity, PP 1847–8 (307) XV; Legal Observer 36 (1848): 45.

34. 15 & 16 Viet, c. 87. See Legal Observer 43 (1852): 286; Parl. Debs., third sen, 122: 833 (St. Leonards LC, 17 June 1852).

35. Parl. Debs., third ser., 123: 178 (16 November 1852). See also his evidence to Select Committee on Official Salaries, PP 1850 (611) XV 179, p. 219, qq. 2150–51.

36. See Aglionby's comments in Parl. Debs., 118: 166 (3 July 1851). St. Leonards LC, hoping for the disappearance of all fees, also wanted the Suitors' idle money to be invested on their behalf, after a period of two years during which it could be drawn on by ‘he state: Parl. Debs., third ser., 123: 175 (16 November 1852).

37. In 1868, thirteen Sworn Clerks still received over £14,300 in compensation.’ PP 1868–9 (34) LI. 107. This was half that paid in 1860: PP 1861 (84) LI. 477.

38. Parl. Debs., 57: 1162 (27 April 1841). The Suitors' Fund had, of course, been drawn on at numerous points in the eighteenth century for erecting new buildings. Wilde's motion had been prompted by the ILS, and a select committee subsequently investigated. For a history and comments on the potential use of the Suitors' Fund, see Legal Observer 44 (1852): 23.

39. Parl. Debs., 130: 726 (16 February 1854). His opinion was doubtless also informed by his hostility to the idea of moving the common law courts from Westminster.

40. Parl. Debs., third ser., 198: 1061 (2 August 1869).

41. See PP 1852 (216) XLII. 541.

42. Legal Observer 25 (1842): 143.

43. The ILS echoed these demands in its report three years later, also seeking an optional alternative, simpler system, than commencing cases by bill and answer: PP 1852 (216) XLII. 541, at p. 5.

44. Law Review 8 (1848): 406.

45. Observations on the offices of the Masters in Chancery, with extracts from the books and notes of one of the Masters (London: V. & R. Stevens & G. S. Norton, 1848), 8.

46. See Law Review 9 (1848): 1–22. Among Field's suggestions in 1840 was “To require one master, or a court of masters… to sit as a Court to hear all such matters as are attended by counsel, and also all applications as to bringing in documents, or for time, for enlarging publication, and execution of documents.” Observations, 47–48. Those in favor of simpler procedures for initiating cases in administration suits included Spence, George. Legal Observer 25 (1842): 149, 184.Google Scholar

47. Merivale, J. H., Letters to a Chancery Reformer, occasioned by the withdrawal of the late bill for facilitating the administration of justice (London: William Pickering, 1841), 17–18.Google Scholar

48. See the comments of Headlam, T. E., chairman of the LAS's equity committee in Law Review 8 (1848): 245.Google Scholar

49. Charitable Trusts Bill: Parl. Debs., third ser., 120: 208 (26 March 1852). Compare also the proposals to give masters in lunacy original powers. See Parl. Debs., third ser., 120: 348 (3 March 1852). Both measures were overtaken by the Chancery reforms of 1852, and both saw regulation acts pass in 1853: the Lunacy Regulation Act (16 & 17 Viet, c. 70) and the Charitable Trusts Act (16 & 17 Viet, c. 137).

50. See the proposals of the LAS equity committee in Law Review 7 (1847): 70. The committee added that if the parties chose to use a bill and answer, the court should be able merely to declare the rights of the parties, leaving it to the parties to go to the master “there to adduce such evidence as might enable him to apply the decision to the particular facts.”

51. Fairer, Observations, 19.

52. Law Review 10 (1849): 109.

53. The Times, 21 November 1840, quoted in Legal Observer 21 (1840–41): 52. See also the letter of “Peter Purge” in January 1841, in ibid., 179. The idea that a judge should work out his own decrees was also put forward in Stewart's, JamesSuggestions as to reforms in some branches of the law (London: Longman, Brown, Green, and Longmans, and E. Spettigue, 1842)Google Scholar and was suggested to Langdale by William Brougham in February 1842: Brougham, W., A Letter to Lord Chancellor Cottenham upon the Bill to give primary jurisdiction to the masters in ordinary of the Court of Chancery in Certain Cases (London: William Pickering, 1850), 4–5.Google Scholar According to Langdale, the question was debated at length by the Lord Chancellor's informal commission, but no conclusions were reached: PP 1847–8 (158) XV. 1, p. 159. See also Lowndes, M. D., Delays in Chancery considered, with Practical Suggestions for their prevention or removal (London: S. Sweet, 1843)Google Scholar; Legal Observer 21(1841): 269.

54. Legal Observer 25 (1842): 161. This would not however entail new courts, for the judges would sit alternately in court and in chambers. Stewart, Suggestions, 52, proposed six judges.

55. Legal Observer 21 (1841): 227.

56. See, e.g., Fairer, Observations, 28.

57. PP 1847–48 (158) XV.1, pp. 167–68. The select committee ultimately recommended a reduction in the number of masters, rather than their abolition.

58. Law Review 6 (1847): 122–42 at 133.

59. Ibid. 7 (1847): 69; cf ibid., 10 (1849): 107.

60. Ibid. 9 (1850): 446–48.

61. This was not, however, seen as a rival principle: see William Brougham, Letter, 5–8.

62. Legal Observer 38 (1849): 41. See also Law Review 8 (1848): 402–12, reviewing the MPLA's memorial to the Lord Chancellor on desired reforms.

63. See Law Review 12 (1850): 162–67.

64. Parl. Debs., third ser., Ill: 1128 (12 June 1850). Turner himself preferred giving judges greater powers to handle cases in chambers rather than referring them to masters: Parl. Debs., third ser., 110: 121 (9 April 1850).

65. 13 & 14 Viet. c. 89. It allowed for cases to commence by petition, for opinions of the court to be given on a special case, and for masters to have greater powers and proceedings in their offices to be facilitated. For comment, see Law Review 13 (1850): 321–22.

66. Brougham MSS, University College, London MS WB: Cottenham to Henry Brougham (1 June 1850). Brougham, when later stressing to Russell the need to abolish the masters, dismissed Cottenham as one of the “enemies of all change in the Law.” The National Archives, London, PRO 30/22/9C, f. 5 (18 April 1851).

67. Law Times 15 (1850): 124. The claim procedure was to be used in cases of creditors and legatees of deceased persons, administrators seeking court protection, as well as mortgages, trusts, and partnerships.

68. Legal Observer 40 (1850): 1.

69. 13 & 14 Viet, c. 35. Turner's act was a significant step in Chancery reform, since it allowed a decision to be obtained without the expense of a suit involving all interested parties, where there were no facts in dispute and the sole question between the parties was how a document applied to them. It also provided some facilities to executors and administrators to protect themselves from liability for future claims. See Law Review 13 (1850): 324. Another important piece of legislation of this year simplifying procedure was the Trustee Act (13 & 14 Viet, c. 60), for which see Stebbings, Chantal, The Private Trustee in Victorian England (Cambridge: Cambridge University Press, 2002), 51.Google Scholar

70. Stuart to Russell, Cottenham to Russell, TNA PRO 30/22/6C, ff. 118, 116 (April 1847); Parl. Debs., third ser., 119: 1468 (J. Stuart, 16 March 1852), 1463 (Sir W. P. Wood).

71. Parl. Debs., third ser., 118: 648 (14 July 1851).

72. See Sir James Graham's comments in Parl. Debs., third ser., 118: 1373 (27 June 1851). Truro's caution is reflected in his observation that it should not be the aim to reform the complex Chancery all at once. Ibid., 1771 (31 July).

73. PP 1852 (216) XLII. 541.

74. Parl. Debs., third ser., 117: 98 (27 May 1851); ibid., 118: 1359 (27 June 1851).

75. Both men had been active on the select committee on fees and saw that the need for reform in the masters' offices was crucial: see Parl. Debs., third ser., 117: 719 (Henley, 13 June 1851); ibid, 118: 1374 (Graham, 27 June 1851).

76. Parl. Debs., third ser., 117: 446 (5 June 1851).

77. TNA PRO 30/22/9C, f. 5 (Brougham to Russell, 18 April 1851).

78. Select Committee of the House of Lords on the Masters Jurisdiction in Equity Bill, PP 1852 (564) XIII 131, qq. 774–75, 855. In fact, in 1848, Langdale had already told the select committee on fees that “a Judge sitting out of court and without the attendance of counsel, might do several things which would prevent a good deal of expense in the Masters' Office; and as far as I am concerned, I have been and am perfectly ready to make the experiment.” PP 1847–8 (158) XV. 1, p. 158. Another obstacle to this reform was removed with the appointment to the Court of Appeal in Chancery of Knight Bruce, who had positively declared “he never will demean himself to step down from his exalted Position to demean himself by going into Southampton Buildings.” Diary of Charles Pugh, Bodleian Library, MS Eng Mise d 467, f. 244.

79. First Report of the Commissioners appointed to inquire into the Process, Practice and System of Pleading in the Court of Chancery: PP 1852 (1437) XXI 1 at p. 31. Parl. Debs., third ser., 119: 600 (16 February 1852).

80. Parl. Debs., third ser., 119: 412 (12 February 1852), 1463 (W. P. Wood, 22 March 1852); ibid., 142: 9 (St. Leonards, 6 May 1856). Truro did not seem on top of the issue of Chancery reform: he admitted in June 1851 (for instance) to being unfamiliar with Romilly's Irish measure: ibid., 117: 331.

81. St. Leonards saw the abolition of the masters as the root of Chancery reform. See Parl. Debs., third ser., 119: 950 (12 March 1852); ibid., 120: 802 (19 April 1852).

82. 15 & 16 Viet, c. 80; Legal Observer 44 (1852): 1; Parl. Debs., third ser., 120: 798 (19 April 1852).

83. Bodleian Library, MS Eng mise d 467, f. 328.

84. PP 1852 (1437) XXI 1 at p. 14. This resulted in the act 15 & 16 Viet. c. 86. See also St. Leonards's comments in Parl. Debs., third ser., 119: 952 (12 March 1852).

85. Under the old system, parties were able to cross-examine, but since they could not see the evidence in chief until the moment of publication, they had to submit their questions to the examiner in ignorance of the evidence in chief. Few litigants chose to cross-examine, since they ran the risk of inadvertently elicting information damaging to their case. However, where matters came before the court by petition, claim, or on interlocutory matter, evidence was by affidavit. See PP 1852 [1437] XXI 1 at p. 7.

86. Parl. Debs., third ser., 123: 179 (16 November 1852: St. Leonards).

87. See Parl. Debs., third ser., 151: 162 ff. (22 June 1858). Cf. Law Times 32 (1859): 183; Solicitor's Journal 9 (1865): 874.

88. Parl. Debs., third ser., 160: 1635 (21 August 1860, Sir James Graham).

89. Solicitor's Journal 17 (1873): 265.

90. Solicitor's Journal 14 (1870): 568. Romilly's decision was taken to the court of appeal, where James LJ ruled, “I do not think that I ought to interfere with the discretion of a Judge as to the degree of weight he thinks fit to give to the conclusion of his Chief Clerk, provided he looks into the matter himself, which, of course, he is bound to do, since he cannot delegate his judicial functions”: Re Albert Average Assurance Association (1870) LR 5 Ch App 597 at 600.

91. Solicitor's Journal 13 (1868): 91; ibid. 14 (1869): 3.

92. PP 1874 [C. 984 - 1] XXIV. 191, PP 38, 41, 42, 43.

93. Law Times 16 (1850): 206; ibid. 17 (1851): 165; cf. ibid. 20 (1853): 192.

94. Law Review 8 (1848): 387–401; ibid. 12 (1850): 366–98; ibid. 13 (1850): 65–87; ibid. 13 (1851): 213–50. See Lobban, “Henry Brougham,” 1212. Field visited again in 1851 and gave more information: Law Times 20 (1852): 10.

95. Society for Promoting the Amendment of the Law, First Report of the Special Committee on the Policy of the Distinction between Law and Equity Procedure (London 1851), 7.

96. John Pitt Taylor lobbied the Peelites in late 1851, hoping to make fusion “a very popular husting cry.” Brougham MS 16543: December 1851.

97. Law Times 32 (1859): 170; ibid. 7 (1846): 242; Parl. Debs., third ser., 117: 716–17 (6 June 1851). Bethell himself claimed to have raised the matter with judges and lawyers in the mid 1850s: Law Times 32 (1859): 140; Parl. Debs., third ser., 199: 523 (18 February 1870). From 1855, he regularly called for fusion at the Juridical Society as well as in parliament: Parl. Debs., third ser., 144: 1246 (24 February 1857); Law Times 48 (1870): 445.

98. Much of Bethell's legislative attention as Solicitor General after 1855 was devoted to the question not of fusion, but of whether the testamentary jurisdiction of the ecclesiastical courts should be transferred to a new Court of Probate (as proposed in the Second Report of the Chancery Commissioners, in 1854) or whether it should be given to the Chancery (as Bethell himself favored). See Hutton, Brian G., “The Reform of the Testamentary Jurisdiction of the Ecclesiastical Courts, 1830–1857” (Brunei Univ. Ph.D. thesis, 2002).Google Scholar

99. Johnes, A. J., Popular Proofs of the fallacy of recent Government plans for the reform of the Superior Courts, and of the unjust application of the public taxes on which they are founded; with remarks on the necessity of a local administration of the law in Chancery, common law, bankruptcy and other cases. In a letter to Lord Brougham and Vaux (London: V. & R. Stevens and G. S. Norton, 1853), 17.Google Scholar

100. Parl. Debs., third ser., 118: 421 (10 July 1851). For comment, see Law Times 16 (1851): 545. Brougham dropped the bill in order to smooth the passing of the legislation to reform the Chancery in 1852. His hesitation to press this bill in 1852–53 was also linked to his awareness that the matter would be considered by the Chancery and County Court Commissioners. See his letter to Denman in Law Review 17 (1852): 141–44 and Parl. Debs., third ser., 122: 1353 (29 June 1852).

101. E. W. Cox's Law Times was very keen on the measure: vol. 24 (1854): 25; ibid. 26 (1856): 173, 245. But the Solicitor's Journal 3 (1859): 462 was less enthusiastic.

102. 28 & 29 Viet., c. 99. See Polden, Patrick, A History of the County Court, 1846–1971 (Cambridge: Cambridge University Press, 1999), 59–60.CrossRefGoogle Scholar

103. Cranworth's speech is in Parl. Debs., third ser., 124: 41 (14 February 1853). On reactions to him, see Law Review 18 (1853): 1–32; ibid. 28 (1857): 290.

104. Parl. Debs., third ser., 130: 1343 (22 February 1854); ibid., 124: 48 (14 February 1853); ibid., 133: 793 (23 May 1854).

105. Parl. Debs., third ser., 150: 1444 (3 June 1858).

106. See Parl. Debs., third ser., 118: 847 (Cockburn, 16 July 1851); John Pitt Taylor to Brougham; Brougham MS 13160 (31 July 1851) and Brougham MS 13169 (1 September 1852); and E. W. Cox to Brougham, Brougham MS W.B. (19 July 1851).

107. Trower, Charles Francis, The Anomalous Condition of English Jurisprudence (London: J. Hatchard & Son, 1848), 73, 77.Google Scholar

108. See Bethell's view in Law Times 16 (1851): 353; and the LAS equity committee's view in First Report, 16.

109. Chancery Commission, PP 1852 [1437] xxi 1 at pp. 2–3; Cranworth LC in Parl. Debs., third ser., 124: 48 (14 February 1853).

110. This was not a new idea: see Merivale, J. H., A Letter to William Courtenay Esq, on the subject of the Chancery Commission (London: John Murray, 1827), 33.Google Scholar

111. 15 & 16 Viet, c. 86.

112. One prominent example that saw statutory reform was the law of patents: 15 & 16 Viet, c. 83, s. 42.

113. Brougham was said to have noted “that equity is the same as the law on the same state of facts and the same question and only differs when either the facts differ or there is a different and larger question raised”: Law Times 55 (1873): 40.

114. Third Report of Her Majesty's Commissioners appointed to inquire into the Process, Practice and System of Pleading in the Court of Chancery, PP 1856 [2064] XXII 1 at p. 3.

115. Law Times 33 (1859): 62. See also Solicitors Journal 3 (1859): 733.

116. PP 1860 [2698] XXXI 279 at pp. 34–35.

117. PP 1852 [1437] XXI 1 at 21. See also Lord St. Leonards's dissenting report to the Chancery Evidence Commission: PP 1860 [2698] XXXI 279 at p. 12.

118. Compare Solicitor's Journal 3 (1858): 22 and 966.

119. Solicitor's Journal 3 (1859): 967.

120. PP 1860 [2698] XXXI 279 at pp. 8–9. The proposals were implemented by a General Order of 5 February 1861, issued under the authority of 23 & 24 Viet. c. 128. See the comments of the Law Times 36 (1860): 14, and the Judicature Commissioners, PP 1868–9 XXV [4130] 1, p. 6.

121. PP 1852–3 [1626] XL 701 at p. 43.

122. Law Times 23 (1854): 101.

123. Common Law Procedure Act 1854 (17 & 18 Viet, c. 125), ss 50ff (discovery), 68–70 (specific performance by mandamus), 79 (injunctions), 83, 85 (equitable defenses and replications).

124. A bill to that effect was brought in 1854 (after the commissioners had made the recommendation to the Lord Chancellor) but not pursued. Parl. Debs., third ser., 135: 1369 (7 August 1854); Law Times 23 (1854): 169.

125. 21 & 22 Viet, c. 27. See Lobban, Michael, “The Strange Life of the English Civil Jury, 1837–1914,” in The Dearest Birthright of the People of England: The Jury in the History of the Common Law, ed. Cairns, John and McLeod, Grant (Oxford: Hart Publishing, 2002), 182.Google Scholar On the doctrinal difficulties raised by equity's jurisdiction to give “damages in equity” experienced after the passing of the Judicature Acts, see Jolowicz, J. A., “Damages in Equity—A Study of Lord Cairns's Act,” Cambridge Law Journal 34 (1975): 224–52CrossRefGoogle Scholar; Getzler, Joshua, “Equitable Compensation and the Regulation of Fiduciary Relationships,” in Restitution and Equity, vol. 1, Resulting Trusts and Equitable Compensation, ed. Birks, Peter and Rose, Francis (London: Mansfield Press, 2000), 235–57Google Scholar; see also McDermott, P. M., “Jurisdiction of the Court of Chancery to Award Damages,” Law Quarterly Review 108 (1992): 652–73.Google Scholar

126. This was Parke B's view in Mines Royal Society v. Magnay (1854) 10 Exch 482 at 493, though it was described as “a rather narrow construction” by Crowder J in Chilton v. Carrington (1855) 16 CB 206 at 210.

127. Phelps v. Prothero (1855) 7 De G. M. & G. 722; Kingsford v. Swinford (1859) 28 LJ Rep (Eq) 413; and Gompertz v. Pooley (1859) 28 LJ Rep (Eq) 484, 4 Drewry 448. Cf. Wild v. Hillas (1858) 28 LJ Rep. (Eq) 170.

128. PP 1860 [2614] XXXI 341, pp. 12–13.

129. For the texts, see Solicitor's Journal 4 (1860): 408, 639.

130. Contrast, e.g., Farrer, Observations, 17, with Law Times 16 (1851): 352.

131. Chancery Commission, PP 1852 [1437] xxi 1 at p. 2.

132. Thus, St. Leonards pointed out in 1853 that if the common law were to have the same jurisdiction as Chancery, it would need this machinery, but in the meanwhile, it was better to send cases from one court to another. Parl. Debs., third ser., 124: 66.

133. These arguments were marshaled against the Law and Equity Bill in 1860, as they had been against a preceding bill brought by Atherton in 1858 to secure the original aims of the Common Law Commissioners. Solicitor's Journal 2 (1858): 597; ibid. 4 (1860): 359. Cf. ibid. 3 (1858): 21; Law Times 32 (1859): 170. See also Cranworth's speech in Parl. Debs., third ser., 158: 12 (24 April 1860).

134. Collier: Parl. Debs., third ser., 123: 766 (29 November 1852).

135. The Solicitor's Journal 4 (1860): 444 argued that this was evident from the rival interpretations of the Patent Law Amendment Act (15 & 16 Viet, c. 83 s. 42) in Patent Type Founding Co. (Ltd.) v. Lloyd (1860) 5 H. & N. 192 (before the Exchequer judges) and Patent Type-Founding Co. v. Walter (1860) Johns 727 (before Page Wood VC).

136. Chancery Commission, PP 1852 [1437] xxi 1 at p. 2.

137. PP 1852–3 [1626] XL 701 at p. 45.

138. E.g., Law Times 32 (1859): 171; Solicitor's Journal 2 (1858): 597.

139. Solicitor's Journal 4 (1860): 358, 409.

140. Parl. Debs., third ser., 158: 12, 8 (24 April 1860). See also ibid., 178: 1182 (28 April 1865).

141. Solicitor's Journal 4 (1860): 664.

142. 25 & 26 Viet, c. 42. See also the debate in Parl. Debs., third ser., 166: 115 (26 March 1862).

143. See Francis's, H. J. speech to the MPLA Solicitor's Journal 10 (1866): 206.Google Scholar

144. See Parl. Debs., third ser., 185: 848 (22 February 1867).

145. PP 1868–9 XXV [4130] 1, p. 6. They went further than the solicitors of the ILS and MPLA, who still in 1869 wanted a cautious assimilation of procedure in the two systems: see Solicitor's Journal 14 (1869): 69.

146. In February 1868, the Associated Committees of Law Societies noted that “The general division of legal business effected by the present system is very convenient; and … it is desirable that the work of the Courts shall as much as possible continue to pass through its present channels.” Quoted in Parl. Debs., third ser., 214: 342.

147. The original bill is printed in Law Times 48 (1870): 393.

148. Parl. Debs., third ser., 200: 176 (18 March 1870).

149. Solicitor's Journal 14 (1870): 548; Law Times 48 (1870): 488.

150. Cockburn, A., Our Judicial System: a letter to the Lord High Chancellor on the proposed changes in the judicature of the country (London: William Ridgway, 1870), 27.Google Scholar

151. Solicitor's Journal 14 (1870): 613, 605.

152. Selborne MSS, Lambeth Palace Library, MS 1865, ff. 215–16.

153. Parl. Debs., third ser., 200: 2039 (29 April 1870). He pointed to the different treatment of estates for life without impeachment of waste.

154. PP 1870(180)11 187.

155. See the attitudes to the question of Sir George Jessel SG and Sir John Coleridge AG in Parl. Debs., third ser. 212: 1929, 1941 (26 July 1872).

156. Parl. Debs., third ser. 214: 339 (13 February 1873). Cf. Cairns's comments at ibid., 361.

157. Parl. Debs., third ser., 216: 645 (9 June 1873).

158. Selborne MSS, Lambeth Palace Library, MS 1865, f 22lv.

159. See Solicitor's Journal 17 (1873): 361, 389; Law Times 55 (1873): 302, 132, 267.

160. See Maitland, F. W., Equity: A Course of Lectures, ed. Chaytor, A. H. and Whittaker, W. J., rev. Brunyate, John (Cambridge: Cambridge University Press, 1936). 152Google Scholar; Meagher, R. P., Heydon, J. D., and Leeming, M. J., Equity: Doctrines and Remedies, 4th ed. (Sydney: Butterworths Lexis Nexis, 2002), 50.Google Scholar

161. Solicitor's Journal 16 (1873): 662.

162. There were, however, some who saw in the bill an “intentional subordination” of the common law to the Chancery: Law Magazine and Review, new ser., 2 (1873): 538. Cockburn had taken a similar view in 1870.

163. Preston v. Dania (1872) 8 L.R. Exch 19 at 22.

164. Law Times 55 (1873): 40; Solicitor's Journal 17 (1873): 552–54.

165. Hemming, G. W., Thoughts on the Fusion of Law and Equity suggested by the Lord Chancellor's Bill (London: Macmillan & Co., 1873), 15–20.Google Scholar

166. The Times, 28 April 1873, 8f.; 1 May 1873, 12d.

167. Parl. Debs., third ser., 216: 647–48 (9 June 1873). See also Fitzroy Kelly's letter to Selborne, 11 Feb. 1873, Selborne MSS, Lambeth Palace Library, MS 1865, f. 22lv.

168. Polden, Patrick, “Mingling the Waters: Personalities, Politics and the Making of the Supreme Court of Judicature,” Cambridge Law Journal 61 (2002): 592.CrossRefGoogle Scholar

169. Walsh v. Lonsdale (1882) 21 Ch. D. 9 at 14–15. But compare his statement in Salt v. Cooper (1880) 16 Ch D 544 at 549 and Joseph v. Lyons (1884) 15 QBD 280 at 286.

170. Per Lord Watson in Ind. Coope & Co v. Emmerson (1887) 12 App Cas 300, 308. See also Maitland, Equity, 148, Ashburner's Principles of Equity, 2nd ed. by Browne, Denis (London: Butterworths, 1933), 18Google Scholar, and Meagher, Heydon, and Leeming, Equity: Doctrines and Remedies, 52ff. on the “fusion fallacy.”

171. See Gardner, Simon, “Equity, Estate Contracts and the Judicature Acts: Walsh v. Lonsale Revisited,” Oxford Journal of Legal Studies 7 (1987): 60–103.CrossRefGoogle Scholar

172. Getzler, Joshua, “Patterns of Fusion,” in The Classification of Obligations, ed. Birks, P. B. H. (Oxford: Clarendon Press, 1997), 159.Google Scholar