Preparing for fusion: Reforming the nineteenth-century court of Chancery, part II

Law and History Review

Volumn 22, Issue 3, 2004, Pages 565-598

  Lobban, Michael ^a  

^a QUEEN MARY UNIVERSITY OF LONDON   (United Kingdom)

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EID: 60449086586     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.2307/4141689     Document Type: Review

References (271)

1. Parl. Debs., third ser., 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
3. 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. Arthur Burns and Joanna Innes (Cambridge: Cambridge University Press, 2003), 114-35
4. H. W. Weston, Chancery Infamy; or a plea for an Anti-Chancery League (London: Effingham Wilson, 1850), 4
5. cf. [Charles Purton Cooper] Lettres sur la cour de la chancellerie et quelques points de la jurisprudence angloise (London: Longman et Compagnie, 1827), 7
6. 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
7. See also Parl. Debs, new ser., 14: 1178 (Joseph Hume, 7 March 1826)
8. See also Law Times 33 (1859): 233 for the death of a prisoner committed by Eldon for contempt of Chancery
9. See Weston, Chancery Infamy
10. and William Carpenter, The Equity Jurisdiction of the Court of Chancery (London: Effingham Wilson, 1850)
11. 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
12. See, e.g., V. Markham Lester, Victorian Insolvency: Bankruptcy, Imprisonment for Debt and Company Winding Up in Nineteenth-Century England (Oxford: Clarendon Press 1995), 64-67, 126ff
13. 19 & 20 Vict. cc. 60, 97
14. See Law Times 28 (1856): 181, 251
15. For the Social Science Association, see Lawrence Goldman, Science, Reform and Politics in Victorian Britain: The Social Science Association, 1857-1886 (Cambridge: Cambridge University Press, 2002)
16. The Joint Stock Companies Act of 1844 (7 & 8 Vict. c. 110)
17. set up a system of registered companies and was followed by the Joint Stock Companies Winding Up Act of 1848 (11 & 12 Vict. 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
18. Lobban, "Henry Brougham," 1193
19. Legal Observer 23 (1841): 18
20. The act was 3 & 4 Wm. 4 c. 94, which gave the powers for a five-year period
21. See also the comments in Legal Observer 23 (1841): 81
22. 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
23. 2 & 3 Wm. IV cc. 111, 122
24. 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
25. 3 & 4 Wm. IV. c. 94
26. 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
27. See Legal Observer 6 (1833): 501
28. E. W. Field, Observations of a Solicitor on defects in the offices, practice, and system of costs of the Equity Courts (London: William Pickering, 1840), 23
29. Field, Observations, 5
30. Parl. Debs., third ser., 55: 1317 (5 August 1840)
31. 5 & 6 Vict. c. 103
32. 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
33. Parl. Debs., third ser., 86: 186 (Sir F. Thesiger, 7 May 1846)
34. Law Magazine 29 (1843): 308-35
35. 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 Vict. c. 94)
36. but by orders issued on 6 December 1843 by the Lord Chancellor (under 5 & 6 Vict. c. 103)
37. 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
38. 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)
39. Legal Observer 25 (1842): 5
40. 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)
41. Law Times 23 (1854): 43
42. 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
43. 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
44. These dividends ran to nearly £83,000 in 1842 and almost £100,000 three years later: PP1843 (64) XLIV 153
45. PP1846 (43) XXXIII 215
46. The Master of the Rolls and the Vice Chancellor of England were paid from the consolidated fund under 6 Geo. IV c. 84
47. See William Challinor, 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), 20
48. Letter from 'R' in Legal Observer 36 (1848): 427
49. First Report of the Select Committee on Fees in Courts of Law and Equity, PP 1847-8 (158) XV.1, p. 148
50. 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)
51. 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)
52. Field estimated their income at between £58,000 and £80,000 a year: Observations, 13ff
53. PP 1847-48 (158) XV.1, pp. 146-49
54. See also Field's views at PP 1847 (643) VIII.25, p. 34
55. cf. Legal Observer 27 (1844): 225
56. and Law Review 7 (1848): 361-72
57. Report from the Select Committee on Fees in Courts of Law and Equity: PP 1849 (559) VIII.289, xvii-xviii
58. See PP 1847-8 (158) XV.1, pp. 1-5
59. However, the report in 1849 noted that junior clerks did demand payment for unnecessary "excuse copies": PP 1849 (559) VIII.289, p. 11
60. See Second Report of the Select Committee on Fees in Courts of Law and Equity, PP 1847-8 (307) XV
61. Legal Observer 36 (1848): 45
62. 15 & 16 Vict. c. 87
63. See Legal Observer 43 (1852): 286
64. Parl. Debs., third ser., 122: 833 (St. Leonards LC, 17 June 1852)
65. Parl. Debs., third ser., 123: 178 (16 November 1852)
66. See also his evidence to Select Committee on Official Salaries, PP 1850 (611) XV 179, p. 219, qq. 2150-51
67. See Aglionby's comments in Parl. Debs., 118: 166 (3 July 1851)
68. 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 the state: Parl. Debs., third ser., 123: 175 (16 November 1852)
69. In 1868, thirteen Sworn Clerks still received over £14,300 in compensation: PP 1868-9 (34) LI. 107
70. This was half that paid in 1860: PP 1861 (84) LI. 477
71. 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
72. For a history and comments on the potential use of the Suitors' Fund, see Legal Observer 44 (1852): 23
73. 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
74. Parl. Debs., third ser., 198: 1061 (2 August 1869)
75. See PP 1852 (216) XLII. 541
76. 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
77. Law Review 8 (1848): 406
78. 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
79. See Law Review 9 (1848): 1-22
80. 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
81. Those in favor of simpler procedures for initiating cases in administration suits included George Spence. Legal Observer 25 (1842): 149, 184
82. J. H. Merivale, 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
83. See the comments of T. E. Headlam, chairman of the LAS's equity committee in Law Review 8 (1848): 245
84. Charitable Trusts Bill: Parl. Debs., third ser., 120: 208 (26 March 1852)
85. Compare also the proposals to give masters in lunacy original powers. See Parl. Debs., third ser., 120: 348 (3 March 1852)
86. Both measures were overtaken by the Chancery reforms of 1852, and both saw regulation acts pass in 1853: the Lunacy Regulation Act (16 & 17 Vict. c. 70)
87. and the Charitable Trusts Act (16 & 17 Vict. c. 137)
88. 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."
89. Farrer, Observations, 19
90. Law Review 10 (1849): 109
91. The Times, 21 November 1840, quoted in Legal Observer 21 (1840-41): 52
92. See also the letter of "Peter Purge" in January 1841, in ibid., 179
93. The idea that a judge should work out his own decrees was also put forward in James Stewart's Suggestions as to reforms in some branches of the law (London: Longman, Brown, Green, and Longmans, and E. Spettigue, 1842)
94. and was suggested to Langdale by William Brougham in February 1842: W. Brougham, 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
95. 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
96. See also M. D. Lowndes, Delays in Chancery considered, with Practical Suggestions for their prevention or removal (London: S. Sweet, 1843)
97. Legal Observer 21 (1841): 269
98. This would not however entail new courts, for the judges would sit alternately in court and in chambers. Stewart, Suggestions, 52, proposed six judges
99. 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
100. Law Review 6 (1847): 122-42 at 133
101. cf ibid., 10 (1849): 107
102. This was not, however, seen as a rival principle: see William Brougham, Letter, 5-8
103. Legal Observer 38 (1849): 41
104. See also Law Review 8 (1848): 402-12, reviewing the MPLA's memorial to the Lord Chancellor on desired reforms
105. See Law Review 12 (1850): 162-67
106. Parl. Debs., third ser., 111: 1128 (12 June 1850)
107. 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)
108. 13 & 14 Vict. 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
109. For comment, see Law Review 13 (1850): 321-22
110. 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)
111. 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
112. Legal Observer 40 (1850): 1
113. 13 & 14 Vict. 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
114. See Law Review 13 (1850): 324
115. Another important piece of legislation of this year simplifying procedure was the Trustee Act (13 & 14 Vict. c. 60)
116. for which see Chantal Stebbings, The Private Trustee in Victorian England (Cambridge: Cambridge University Press, 2002), 51
117. Stuart to Russell, Cottenham to Russell, TNA PRO 30/22/6C, ff. 118, 116 (April 1847)
118. Parl. Debs., third ser., 119: 1468 (J. Stuart, 16 March 1852), 1463 (Sir W. P. Wood)
119. Parl. Debs., third ser., 118: 648 (14 July 1851)
120. 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
121. PP 1852 (216) XLII. 541
122. Parl. Debs., third ser., 117: 98 (27 May 1851)
123. 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)
124. TNA PRO 30/22/9C, f. 5 (Brougham to Russell, 18 April 1851)
125. Select Committee of the House of Lords on the Masters Jurisdiction in Equity Bill, PP 1852 (564) XIII 131, qq. 774-75, 855
126. 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
127. 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
128. 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
129. Parl. Debs., third ser., 119: 600 (16 February 1852)
130. Parl. Debs., third ser., 119: 412 (12 February 1852), 1463 (W. P. Wood, 22 March 1852)
131. 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
132. St. Leonards saw the abolition of the masters as the root of Chancery reform. See Parl. Debs., third ser., 119: 950 (12 March 1852)
133. 15 & 16 Vict. c. 80
134. Parl. Debs., third ser., 120: 798 (19 April 1852)
135. Bodleian Library, MS Eng misc d 467, f. 328
136. PP 1852 (1437) XXI 1 at p. 14
137. This resulted in the act 15 & 16 Vict. c. 86
138. See also St. Leonards's comments in Parl. Debs., third ser., 119: 952 (12 March 1852)
139. 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
140. Parl. Debs., third ser., 123: 179 (16 November 1852: St. Leonards)
141. See Parl. Debs., third ser., 151: 162 ff. (22 June 1858)
142. Cf. Law Times 32 (1859): 183
143. Solicitor's Journal 9 ( 1865): 874
144. Parl. Debs., third ser., 160: 1635 (21 August 1860, Sir James Graham)
145. Solicitor's Journal 17 (1873): 265
146. Solicitor's Journal 14 (1870): 568
147. 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
148. Solicitor's Journal 13 (1868): 91
149. PP 1874 [C. 984 - I] XXIV. 191, PP 38, 41, 42, 43
150. Law Times 16 (1850): 206
151. cf. ibid. 20 (1853): 192
152. Field visited again in 1851 and gave more information: Law Times 20 (1852): 10
153. 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
154. John Pitt Taylor lobbied the Peelites in late 1851, hoping to make fusion "a very popular husting cry." Brougham MS 16543: December 1851
155. Parl. Debs., third ser., 117: 716-17 (6 June 1851)
156. Bethell himself claimed to have raised the matter with judges and lawyers in the mid 1850s: Law Times 32 (1859): 140
157. Parl. Debs., third ser., 199: 523 (18 February 1870)
158. 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)
159. Law Times 48 (1870): 445
160. 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 Brian G. Hutton, "The Reform of the Testamentary Jurisdiction of the Ecclesiastical Courts, 1830-1857" (Brunel Univ. Ph.D. thesis, 2002)
161. A. J. Johnes, 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
162. 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
163. See his letter to Denman in Law Review 17 (1852): 141-44
164. and Parl. Debs., third ser., 122: 1353 (29 June 1852)
165. E. W. Cox's Law Times was very keen on the measure: vol. 24 (1854): 25
166. But the Solicitor's Journal 3 (1859): 462 was less enthusiastic
167. 28 & 29 Vict., c. 99
168. See Patrick Polden, A History of the County Court, 1846-1971 (Cambridge: Cambridge University Press, 1999), 59-60
169. Cranworth's speech is in Parl. Debs., third ser., 124: 41 (14 February 1853)
170. On reactions to him, see Law Review 18 (1853): 1-32
171. Parl. Debs., third ser., 130: 1343 (22 February 1854)
172. Parl. Debs., third ser., 150: 1444 (3 June 1858)
173. See Parl. Debs., third ser., 118: 847 (Cockburn, 16 July 1851)
174. John Pitt Taylor to Brougham; Brougham MS 13160 (31 July 1851)
175. and Brougham MS 13169 (1 September 1852)
176. and E. W. Cox to Brougham, Brougham MS W.B. (19 July 1851)
177. Charles Francis Trower, The Anomalous Condition of English Jurisprudence (London: J. Hatchard & Son, 1848), 73, 77
178. See Bethell's view in Law Times 16 (1851): 353
179. and the LAS equity committee's view in First Report, 16
180. Chancery Commission, PP 1852 [1437] xxi 1 at pp. 2-3
181. Cranworth LC in Parl. Debs., third ser., 124: 48 (14 February 1853)
182. This was not a new idea: see J. H. Merivale, A Letter to William Courtenay Esq, on the subject of the Chancery Commission (London: John Murray, 1827), 33
183. 15 & 16 Vict. c. 86
184. One prominent example that saw statutory reform was the law of patents: 15 & 16 Vict. c. 83, s. 42
185. 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
186. 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
187. Law Times 33 (1859): 62
188. See also Solicitor's Journal 3 (1859): 733
189. PP 1860 [2698] XXXI 279 at pp. 34-35
190. PP 1852 [1437] XXI 1 at 21
191. See also Lord St. Leonards's dissenting report to the Chancery Evidence Commission: PP 1860 [2698] XXXI 279 at p. 12
192. Compare Solicitor's Journal 3 (1858): 22 and 966
193. Solicitor's Journal 3 (1859): 967
194. PP 1860 [2698] XXXI 279 at pp. 8-9
195. The proposals were implemented by a General Order of 5 February 1861, issued under the authority of 23 & 24 Vict. c. 128
196. See the comments of the Law Times 36 (1860): 14
197. and the Judicature Commissioners, PP 1868-9 XXV [4130] 1, p. 6
198. PP 1852-3 [1626] XL 701 at p. 43
199. Common Law Procedure Act 1854 (17 & 18 Vict. c. 125), ss 50ff (discovery), 68-70 (specific performance by mandamus), 79 (injunctions), 83, 85 (equitable defenses and replications)
200. 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)
201. 21 & 22 Vict. c. 27
202. See Michael Lobban, "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. John Cairns and Grant McLeod (Oxford: Hart Publishing, 2002), 182
203. On the doctrinal difficulties raised by equity's jurisdiction to give "damages in equity" experienced after the passing of the Judicature Acts, see J. A. Jolowicz, "Damages in Equity - A Study of Lord Cairns's Act," Cambridge Law Journal 34 (1975): 224-52
204. Joshua Getzler, "Equitable Compensation and the Regulation of Fiduciary Relationships," in Restitution and Equity, vol. 1, Resulting Trusts and Equitable Compensation, ed. Peter Birks and Francis Rose (London: Mansfield Press, 2000), 235-57
205. see also P. M. McDermott, "Jurisdiction of the Court of Chancery to Award Damages," Law Quarterly Review 108 (1992): 652-73
206. This was Parke B's view in Mines Royal Society v. Magnay (1854) 10 Exch 482 at 493
207. though it was described as "a rather narrow construction" by Crowder J in Chilton v. Carrington (1855) 16 CB 206 at 210
208. Phelps v. Prothero (1855) 7 De G. M. & G. 722
209. Kingsford v. Swinford (1859) 28 LJ Rep (Eq) 413
210. and Gompertz v. Pooley (1859) 28 LJ Rep (Eq) 484, 4 Drewry 448
211. Cf. Wild v. Hillas (1858) 28 LJ Rep. (Eq) 170
212. PP 1860 [2614] XXXI 341, pp. 12-13
213. For the texts, see Solicitor's Journal 4 (1860): 408, 639
214. Contrast, e.g., Farrer, Observations, 17
215. with Law Times 16 (1851): 352
216. 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
217. 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
218. Cf. ibid. 3 (1858): 21
219. See also Cranworth's speech in Parl. Debs., third ser., 158: 12 (24 April 1860)
220. Collier: Parl. Debs., third ser., 123: 766 (29 November 1852)
221. The Solicitor's Journal 4 (1860): 444
222. argued that this was evident from the rival interpretations of the Patent Law Amendment Act (15 & 16 Vict. c. 83 s. 42)
223. in Patent Type Founding Co. (Ltd.) v. Lloyd (1860) 5 H. & N. 192 (before the Exchequer judges)
224. and Patent Type-Founding Co. v. Walter (1860) Johns 727 (before Page Wood VC)
225. PP 1852-3 [1626] XL 701 at p. 45
226. E.g., Law Times 32 (1859): 171
227. Solicitor's Journal 4 (1860): 358, 409
228. Parl. Debs., third ser., 158: 12, 8 (24 April 1860)
229. See also ibid., 178: 1182 (28 April 1865)
230. Solicitor's Journal 4 (1860): 664
231. 25 & 26 Vict. c. 42
232. See also the debate in Parl. Debs., third ser., 166: 115 (26 March 1862)
233. See H. J. Francis's speech to the MPLA Solicitor's Journal 10 (1866): 206
234. See Parl. Debs., third ser., 185: 848 (22 February 1867)
235. PP 1868-9 XXV [4130] 1, p. 6
236. 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
237. 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
238. The original bill is printed in Law Times 48 (1870): 393
239. Parl. Debs., third ser., 200: 176 (18 March 1870)
240. A. Cockburn, 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
241. Solicitor's Journal 14 (1870): 613, 605
242. Selborne MSS, Lambeth Palace Library, MS 1865, ff. 215-16
243. Parl. Debs., third ser., 200: 2039 (29 April 1870). He pointed to the different treatment of estates for life without impeachment of waste
244. PP 1870 (180) II 187
245. 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)
246. Parl. Debs., third ser. 214: 339 (13 February 1873)
247. Cf. Cairns's comments at ibid., 361
248. Parl. Debs., third ser., 216: 645 (9 June 1873)
249. Selborne MSS, Lambeth Palace Library, MS 1865, f 221v
250. See Solicitor's Journal 17 (1873): 361, 389
251. Law Times 55 (1873): 302, 132, 267
252. See F.W. Maitland, Equity: A Course of Lectures, ed. A. H. Chaytor and W. J. Whittaker, rev. John Brunyate (Cambridge: Cambridge University Press, 1936), 152
253. R. P. Meagher, J. D. Heydon, and M. J. Leeming, Equity: Doctrines and Remedies, 4th ed. (Sydney: Butterworths LexisNexis, 2002), 50
254. Solicitor's Journal 16 (1873): 662
255. 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
256. Preston v. Dania (1872) 8 L.R. Exch 19 at 22
257. Law Times 55 (1873): 40
258. G. W. Hemming, Thoughts on the Fusion of Law and Equity suggested by the Lord Chancellor's Bill (London: Macmillan & Co., 1873), 15-20
259. The Times, 28 April 1873, 8f
260. 1 May 1873, 12d
261. Parl. Debs., third ser., 216: 647-48 (9 June 1873)
262. See also Fitzroy Kelly's letter to Selborne, 11 Feb. 1873, Selborne MSS, Lambeth Palace Library, MS 1865, f. 221v
263. Patrick Polden, "Mingling the Waters: Personalities, Politics and the Making of the Supreme Court of Judicature," Cambridge Law Journal 61 (2002): 592
264. Walsh v. Lonsdale (1882) 21 Ch. D. 9 at 14-15
265. But compare his statement in Salt v. Cooper (1880) 16 Ch D 544 at 549
266. and Joseph v. Lyons (1884) 15 QBD 280 at 286
267. Per Lord Watson in Ind. Coope & Co v. Emmerson (1887) 12 App Cas 300, 308
268. See also Maitland, Equity, 148, Ashburner's Principles of Equity, 2nd ed. by Denis Browne (London: Butterworths, 1933), 18
269. and Meagher, Heydon, and Leeming, Equity: Doctrines and Remedies, 52ff. on the "fusion fallacy."
270. See Simon Gardner, "Equity, Estate Contracts and the Judicature Acts: Walsh v. Lonsale Revisited," Oxford Journal of Legal Studies 7 (1987): 60-103
271. Joshua Getzler, "Patterns of Fusion," in The Classification of Obligations, ed. P. B. H. Birks (Oxford: Clarendon Press, 1997), 159