upon himself the character of a legislator; and finding the current set in favour of the reform of the law, he launched his shallop on the stream. He brought in two bills in 1830, one for preventing the expense and delay of suits in the commonlaw courts, and another for preventing debtors from defrauding creditors by lying in prison or absconding from England; but neither of them passed into law. The former bill contained a provision for subjecting parties to an examination on interrogatories for the discovery of facts or documents in question.

His parliamentary exertions were of various and uncertain value, but he never reached the station of either an eloquent speaker or a successful debater. Ever since he entered the House of Lords, he attached himself strongly and continually to the Conservative party, or rather to the portion of that respectable body which professes extreme opinions. In his parliamentary capacity, as at the bar and on the bench, he was thought often of a hasty temper for the moment, yet perfectly good-natured in the main, and never harbouring the least resentment after the contest of the hour was closed.

In the year 1794, he married Mary Ann, second daughter of Jerome Knapp, Esq., a bencher of the Middle Temple, by whom he had several children. He is succeeded in his title by William, his eldest son, the present Lord Wynford.

Lord Wynford died on the 3rd of March last, at his seat in Kent, having reached the good old age of seventy-seven on his last birthday.

176

ART. X.-LAW REFORM IN INDIA.

IN some future number we hope to be able to take a review of the progress that has been recently made in India in the reform of the law. The proceedings and labours of the Law Commission, which has now for many years been there established, are well worthy of a separate notice, and the whole subject of the amendment of the law is exciting much attention and interest in that great Dependency. Indeed, nothing has given us greater pleasure, since we have commenced our own humble exertions in this cause, than to find that we have touched a chord which is vibrating throughout every part of our mighty Colonial Empire. We would say this in no boastful or sordid spirit; but it is right that it should be known that, in the short space that has elapsed since the publication of our first number, we have received satisfactory proofs that the desire to amend the law is by no means confined to the mother country. We find, that in directing public attention to law reform, in freely discussing it, and endeavouring to diffuse the truth with respect to it, we are awakening sympathies, and receiving assistance, in a far wider sphere than even we had ever contemplated.

Among the proofs which have reached us of this, we wish to give a brief notice of the answers1 made to questions propounded by the Indian Law Commissioners to certain of the Judges in the Supreme Courts in India,-of whom, at any rate, it will not be said that they take cramped or narrowminded views.

Sir Erskine Perry, one of the Judges at Bombay, goes at great length into the expense of proceedings, both at Law and in Equity,-dwelling more especially, so far as the latter is concerned, on the delay at the Master's office, which appears to be no better in Asia than in Europe. To remedy these

1 These are printed in the Bombay Overland Courier, of March 1st.

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

I. Authentic records of proceedings, when necessary.

II. The safe conduct of causes which require length of time for investigation.

III. 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