notices had reached this country of the great legislative change which had been effected in the State of New York, yet the attention of the English public was not fully called to it until the meeting of the Law Amendment Society, on the 18th of November 1851, when Mr. David Dudley Field gave a full account of the compilation and working of that Code, to the completion of which he had, as one of the Commissioners, so much contributed. This succeeded in awakening the public mind to the importance of this subject, and this meeting is written on the annals of the country. This was soon followed by another step. An inquiry was set on foot by the Society as to the operation of the Code in America; and application was made to Mr. Lawrence, the American Ambassador, to transmit questions to persons resident in New York and elsewhere in the United States of America most competent to give information on the subject, and that gentleman at once kindly undertook this duty; and we have already given the form of the questions1 and the results in the shape of the answers to them 2, which were highly satisfactory, as to the success and beneficial effects of the Code. The subsequent triumphs in America of the principle of fusion we have endeavoured from time to time to record, and we have watched with pleasure, but no anxiety, the struggle to resist its adoption in England. It is amusing, indeed, to see the evasions which eminent men and learned judges have resorted to to avoid receiving the whole truth that has been thus proposed. They take it because they see no other course presented to them. The incontestible evidence in its favour cannot be disputed. A great, powerful, and commercial people, weighed down in most of its legal transactions by a double jurisdiction, has, by an effort, shaken off its burden, and is exulting in its relief, a burden which it has received from this country, this people, connected with us by a thousand intimate ties, sharing not only our language, but the very forms and fictions of our law, revelling in trespass and case, and exposed to the dilemmas of a choice of Courts, finds out that all this is a delusion; that a short and simple statement of

See 13 L. R. p. 239.

2 See 14 L. R. p. 284.

complaint is all that is necessary; and that to redress this it is advisable to give to the Judge all those remedies which are now distributed among several Courts. This truth, having been already accepted by the plain good sense of John Bull, is now presented to the judicial mind for recognition, and it is easy to see the result. A truth so palpable must prevail.

We are much pleased, therefore, to hail the Common Law Commissioners as the "vaunt couriers to the oak-cleaving thunderbolt”—the complete adoption of fusion in our Courts; and as it was our duty to complain of the shortcomings of their First Report, so now it is most agreeable to us to give our humble commendation to the Second. We could have wished, indeed, that the first application of the principle of fusion had been to the two Commissions, Law and Equity, and that in considering these important questions, we had had the advantage of the lights of both; for among the learned persons who have signed this Report, we seek in vain for one familiar with Equity practice. But we quite admit that the learned Commissioners have grappled boldly with the main subject under consideration, and have treated it not only with learning and sagacity,- for in these respects no one ever disputed their qualifications, but also with much practical good sense and sound judgment. It is not our present business to advert to any other portion of their Report than that which relates to the subject which we have once more brought under the notice of our readers, and this portion we shall extract entire :

"We have hitherto directed our attention to improving the procedure peculiar to the Courts of Common Law, namely, the suit or action at law. It remains to be considered how far this remedy, so amplified and improved, affords adequate means for enforcing Common Law rights and preventing Common Law injuries. We think we shall not outstep the limits of our commission by so far expressing our opinion upon what is commonly called the fusion of Law and Equity as to say, that, whether or not it may be thought conducive to despatch of business and satisfaction in the administration of justice to do away altogether with the present division of labour between the Courts of Law and Equity, so far as that division arises out of the diversity of the subject matters

over which either class of Courts exercises an exclusive and complete jurisdiction, it appears to us that the Courts of Common Law, to be able satisfactorily to administer justice, ought to possess in all matters within their jurisdiction the power to give all the redress necessary to protect and vindicate Common Law rights and to prevent wrongs, whether existing or likely to happen unless prevented.

“The jurisdiction of Courts of Equity extends over many subject matters entirely outside the pale of the Common Law jurisdiction. In some cases the Court of Chancery acts in the capacity of representing the Crown as parens patriæ, as in the guardianship and control of persons of tender age or unsound mind, and in the superintendence of charitable uses in others it exercises jurisdiction conferred by statute, as, for instance, in the custody and control of money deposited in the formation of public companies, or by way of compensation to persons whose lands have been taken or injuriously affected by such companies; in cases under the Act for the protection of ship-owners against liability beyond the value of the ship and freight where there are more than one claimant ; and very many others, some of which do, and others of which do not, involve any interferenee with or control over Common Law rights. There remains a great body of equitable jurisdiction, under various heads, which is exercised for the greater part over subjects with which the Common Law Courts do not meddle, but to some extent also over a common field in which the Courts of Equity either furnish a supplementary or more complete remedy in respect of Common Law rights, or actually restrain the exercise of such rights on what are termed equitable grounds.

"It is only in respect of that class of cases in which the Courts of Common Law and Equity operate upon the same subject matter in different ways, either by reason of acting upon conflicting rules or by applying different forms of remedy, or rather different portions of a complete remedy for the same wrong, that we consider ourselves authorised to report; but we do not doubt that in these cases in which at present the combined operation of both Courts, without any satisfactory means of communication between them, it is required to make up a complete redress even as between the same parties and in respect of the same subject matter, a consolidation of all the elements of a complete remedy in the same Court is obviously desirable, not to say imperatively necessary, to the establishment of a consistent and rational system of procedure.

"We proceed in the first place to consider the cases in which Courts of Common Law at present afford insufficient protection, or

only partial or inadequate remedies for the infraction of legal rights, and in which in our view the supplemental power exercised by Courts of Equity ought to be added to the principal jurisdiction now vested in the Courts of Common Law.

"With few exceptions, all actions have but one aim and end compensation in damages. The principal exceptions (for the actions of quare impedit and dower rarely occur in practice) are: -1. The action of ejectment, in which the judgment is that the plaintiff recover the land or tenements sued for; 2. Replevin, which is an action to try the validity of a distress or other deprivation of goods; and the result of which is, that if the plaintiff obtains a verdict, he retains the specific chattels distrained, which in the first stage of the proceedings were restored to him upon security being given for their return. The action of detinue is of a mixed character: in form the plaintiff recovers the specific chattels sued for or their value; but as it is at the option of the defendant to pay the value, this action cannot, practically, be considered as a means of recovering specific chattels. In all other actions, as at present constituted, the sole effect of the verdict and judgment is to procure a stipulated sum payable in respect of some debt or duty, or damages in money, for the loss sustained by the plaintiff by the nonperformance of a contract, or for an injury sustained by a wrongful act.

"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 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 redress, a power should exist of anticipating and prohibiting the wrongful act.

"These defects of the Common Law, which it may be observed did not in ancient times exist to the same extent as at present, having been left by the Legislature unredressed, Courts of Equity have stepped in to supply the remedy. These Courts have taken them in certain cases of Common Law obligations and rights to enforce specific performance, and in certain other cases of legal

upon

wrongs commenced or threatened, to prohibit by injunction the commission of wrongful acts.

"It is true that, besides the proceeding by action at Law, there exists in cases where a public inconvenience or private wrong is occasioned by the omission of a public or official duty, or one imposed by Act of Parliament for the benefit of individuals, and no sufficient remedy is afforded by action for damages, a process, by the writ of mandamus, to compel the performance of the particular duty. This proceeding is not common to all the Courts, but peculiar to the Court of Queen's Bench, and it appears to have been originally confined in its operation to a very limited class of cases affecting the administration of public affairs; such as the election of corporate officers, the restoration of officers improperly removed, the compelling inferior Courts to proceed in matters within their jurisdiction, or public officers to perform dutics imposed upon them by Common Law or by statute, as to make a rate and the like; and there can be little doubt that the extreme hardship arising out of the defect in the Law which we have pointed out was one considerable motive for the extension of the remedy in more recent times to cases in which the rights of private individuals only were concerned. In the course of modern legislation no session of Parliament occurs in which a great number of Acts of Parliament do not pass for making railways, forming docks, building bridges, improving towns, and an infinite variety of public works, for the most part to be done by joint stock corporations or companies for the benefit of the shareholders. In almost every Act of this kind numerous provisions are to be found which direct that the Company shall do certain works for the benefit of individuals; such as making communications between lands intersected by works authorised by the Acts, substituting new buildings for others which have been necessarily removed, making roads and communications in lieu of old ones blocked up or injured, and a variety of other works of a similar character. In the event of noncompliance with these enactments, as, indeed, in all cases where the proceeding by mandamus must be resorted to, the remedy is uncertain, tedious, and expensive.

"The present mode of proceeding by mandamus, as amended by numerous Acts of Parliament, and especially by 4 Anne, c. 16., 9 Anne, c. 20., 1 Will. 4. c. 21., and 6 & 7 Victoria, c. 67., is as follows:

"The person seeking for relief by the writ of mandamus is obliged to apply for a rule to show cause why the writ should not issue. This is done upon affidavit, in which is set out the whole