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,

and repealing all not re-enacted in his code, but he has introduced many rules, containing most important principles, which as yet law reformers have not been able to get recognised by our judicial legislators here.

In attempting to improve the judicial procedure of any court, the first thing to do is to examine carefully how the analogous proceeding is done -how well it is done—and at what expense of time and money it is done-in every other court; for an analogous proceeding there will be found to be in every other court, from the highest court of the realm to the court of pie-poudre. Now this first thing most certainly has not been yet attempted in this country, at least after the way in which a great national object should be attempted. We hope that to some extent the Law Amendment Society may lay a foundation for scientific examinations of this kind. Such examinations we believe can only be well effected by a scientific society; and only there, by the combined contributions of many different members-of men who have been placed in all the different ranks of the profession, and in different courts and different countries. Almost all the great evils of defective legal arrangements will be found to arise from the defective and conflicting systems of legal procedure; and till there is a pretty general concurrence of opinion that the subject of legal procedure is to be inductively pursued, like other matters of science, there will certainly be nothing more than hap-hazard advances made towards its improvement. At present we have got no farther than this, we find something wrong in procedure

we forget that it by no means follows that the high priest must be one of the prophets also, and we say "Our judges, "who are our authorities for abstract law, will of course know "how to cure it!-Let them set it right!" The judges, who rightly enough, are accustomed to decide the arbitrary matters of law by themselves, and in their own closets, are by no means accustomed to pursue matters of natural science; and do not, therefore, realize to themselves that they must go to work in a totally opposite way to mend procedure; and must call in aid every person who can be found able to bring out facts bearing upon practice, and must put these persons into collision, to test and elaborate together the various con

And so, instead of the old

tributions they have to offer. empirical plan of letting any parliament man who was drawing an act affecting abstract law, botch up procedure at the same time, we have taken to another plan, very little less empirical.

We should be evading our duty as honest journalists if we omitted to add that the above is the strong feeling-the bitter feeling, we ought to say of the profession. The profession know a rule of court is but a minor act of parliament, intended to be enacted for the good of the suitors. They know that they are the only elected and trusted representatives of the suitors. They have been taught to look on the right of petition about projected laws as a first privilege of a free people. They believe that our laws are as good as they are only by the exercise and check of this privilege; and they conceive themselves entitled to as full an opportunity of expressing their minds upon projected court laws as they would have if these were effected immediately, instead of mediately, by bill in parliament. A secret concoction of

them they look on as at once both an oligarchical Council-ofTen principle of government, and as an implied assertion that either they are incapables, whose opinion would be senseless words, or else that they are banded against their own clients, and enemies to all improvement. We regret that our legal legislators do not see that there is some basis for this view of the subject. If they did, they would allow opportunity for, and invite the combined consideration of, the whole profession upon all their projected court laws, before they would ever consent to put their fiats upon them.

We propose in the remainder of this paper to do, in a most inefficient way we admit, a little of the work of comparing and weighing conflicting rules of procedure, by stating a few particulars in which the Irish equity procedure, as now established by Sir E. Sugden, differs from and appears superior to our own. The general consolidation of the whole corpus of Chancery orders in Ireland we have already mentioned. It is a principle above all praise.

The following three differences between Lord Chancellor Sugden's orders, and those of Lord Cottenham of 1841, from which they are borrowed, are all great improvements.

A notice of a bill, instead of a copy, is served under what is the 23d English order. The saving under this head would often be 30l., 40l., or 50l. in a cause. The motion to enter (a parliamentary or secundum statutem) appearance is entered in Ireland without a motion to the Court, and order thereupon. A reference to the practice of courts of common law, where any abuse under such practice would be infinitely more mischievous (resulting as it would, in an execution against the goods or person, in two or three weeks), would have led the framers of our English order to have spared the suitor the 87. or 107. he is forced to dissipate in the useless mummery of a motion in our courts.

The 30th English order is very wisely extended so as to enable trustees under deeds with powers of sale, &c., to represent cestui que trusts, as well as those under wills, as in England.

The pro confesso practice in Ireland is most sensible. They have none of our intricate, slippery, dilatory, and persecuting rules of attachment, serjeant-at-arms, &c. &c. When an

answer is over-due, a notice of motion is served on the defendant, and thereon an order is made that the bill shall be taken pro confesso, if the answer is not put in in a time thereby limited.

The ridiculous rule of requiring all deponents in London to come to Chancery-lane, at any inconvenience, to swear, answer affidavits, &c. &c., (while in the country every solicitor may do it, and there is not a particle of mischief in the practice); has been vehemently but most ineffectually struggled against here. It was made to secure an income to the Masters. The reason is gone! - the inconvenience has grown with the growth of the "great men," but the rule is held upon us. All that has been done here has been to open two other oath-shops, but both in Chancery Lane, as well as the original shop. In the small city of Dublin a defendant may have his answer sworn by his own commissioner at his own home.

The plan of shewing exhibits, and the rules as to admission of documents (like our common-law rules) as used in the Irish Chancery Court, are of great merit. There is no exception as to married women and infants in these latter orders,