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Simpson.-(11 & 12 Vict. c. 44-Justice of the Peace-Malice-Want of reasonable and probable Cause-Notice of Action-Question for Judge or Jury) ADMIRALTY PRIZE COURT. The Argo.-(Order in Council of the 29th March- 981 983 986 if the duty is one in the performance of which several The Scale of Charges for Advertisements will in future be persons have not distinct interests), certain cases of con & follows: tribution, and injunction. It remains to be seen whether the common-law Courts will accept the offer of the equity Bar, and put themselves under a course of equity, and be guided by equity precedents, or will prefer to regard their new jurisdiction as one depending wholly on the letter of the act of Parliament, and in no way affected by the traditions and rules of Courts of equity. In exercising the jurisdiction by mandamus, there can be no doubt that the Courts will consider themselves bound by the language of the act to administer relief in many cases in which specific performance would be refused in equity. With an equitable jurisdiction, then, in some cases greater than that which Courts of equity themselves possess, and with some of the machinery--perhaps all that is essential-by which Courts of equity have contrived to facilitate the exercise of their powers, the Courts of common law seem to be now deficient only in the following branches of equitable jurisdictionthe perpetuation of testimony; the settlement of boundaries; the administration of trusts in which several' We have no longer to inquire whether the fusion of law and equity is possible, for the process has already commenced and made great progress; and we may trust to the omnipotence of an act of Parliament for its being carried into effect in some form. The question, whether there is any reason in the nature of things, and in any, and if any what, cases, for either the antagonism or the mere division of jurisdiction which our Courts of law and equity have hitherto exhibited, has become one of immediate practical interest, so that he who investigates it may reasonably hope that if his in-persons have distinct interests; certain cases of acquiries lead him to the conclusion that there should be but one side to Westminster Hall, his speculations will not be barren of practical result. The last Common-law Procedure Act has placed the common-law and equity courts on the same footing as respects discovery of facts and documents, the inspection of things, specific performance of contracts, the enforcement of simple trusts, express and implied, including the redemption of mortgages, (for we conceive that the new writ of mandamus may issue for the performance of any duty now recognised only in equity, VOL. XVIII. SS count, contribution, and partnership; the administration of assets; and the care and administration of the persons and estates of infants and lunatics. The jurisdiction that is left to the Courts of equity may be shortly characterised and distinguished from that which is now shared with the Courts of common law, as relating to cases in which the Court undertakes the duty of deciding on and enforcing in one cause either various rights, wholly distinct and unconnected, except by their union in the same person, (infancy and lunacy), or the mutual rights of more than two persons in relation to a common subject, which cannot be resolved by the simple decision of one issue or series of issues between two parties, (administration of assets and of trust estates, winding up of partnerships, &c.) In addition to this judicial jurisdiction, the Lord Chancellor in cases of lunacy, and the Court of Chancery in other cases, takes upon itself to perform the administrative duties of a guardian or trustee. Is there any reason against extending the fusion to these remaining branches of jurisdiction? or rather is there any reason for keeping up the Court of Chancery as a separate judicial establishment? for with respect to its merely administrative duties, it is obvious that they have nothing to do with the Courts considered as seats of judgment, and might be administered in any office established for the purpose, under the direction, as to questions of right, either of a Court of equity or of a Court of mixed or consolidated jurisdiction. To the question so put there can be, it seems to us, but one There is no branch of the law which may answer. not come under consideration in the decision of a case between two persons; and so far as familiarity with the law is concerned, a common-law judge must, therefore, be as competent to administer equity among a dozen persons, each having a separate interest in a common subject, as between two. So far, then, as the qualifications of the Court or of the Bar are concerned, there can be no reason for confining these polygonal cases to a separate Court and Bar. The only peculiarity which is incident to them is the form of procedure; but if the continuance of their present exemptions from the jury lottery is conceded, there is obviously no impediment to the decision of such cases by a Court of common law which could not be readily overcome by very simple arrangements. If, then, the experiment which has just been commenced should prove successful-of which we do not entertain the slightest doubt—it must, we conceive, be very soon followed by the entire extinction of the Court of Chancery as a judicial establishment, and the modification of the common law by the introduction or substitution of qualifications or rules drawn from the doctrines of equity. This reform of the common law, in which the judges have at this moment to take the initiative, is no common task. It will require all the learning and all the labour that can be brought to the work; it will require also, if we are to have any creditable result, an abandonment of prejudices, and a conscientious investigation of the physiology, if we may so express it, of the law, for which the advocates and judges who are to take a leading part in this noble service will have been illprepared by their professional education and habits. Lord Mansfield, who, from the fusion of the English common law with the customs of merchants, evolved the principles of the existing English commercial law, and whose judgment, in attempting to introduce equitable principles into other branches of the law, is condemned by nothing but his defeat, would have been equal to the present crisis. Let us hope that the opportunity now offered of eclipsing his fame will not be lost. is needed in our judicial arrangements. The nume rous judicial establishments of limited jurisdiction, by which, in addition to the great Chancery and Commondisturbed, exist on no defensible principle. We have law Courts, the harmony of the law as a system is one Court for deciding certain questions relating to maritime affairs, another for deciding testamentary questions, another for bankruptcy, another for elections, and so forth; and yet there is scarcely a principle of law with which any one of these Courts is conversant which the ordinary Courts of common law may not on some occasion have to consider and apply. These Courts, therefore, in their judicial capacity, in no measure relieve the ordinary Courts from the obligation of omniscience; but they keep up and tend to increase anomalies, and obstruct the amendment and simplification of the law. The principles of the law, as administered in the common-law courts, are ap plicable to maritime cases, to testamentary matters, to the contract of marriage and its results, to bankruptcy, to elections. There is scarcely a conceivable social relation or transaction which may not furnish intrust the same Court with a jurisdiction extend-an matter for decision by a common-law judge; and tộ any branch of the English law would in no degree ing to every case requiring the judicial application of add to the multifariousness of the learning at present required of its members, while it would relieve them from all the rubbish and perplexities incident to the present system of divided jurisdiction. Singleness and universality of jurisdiction once established-a body of judges and lawyers administering one single system once organised-the scientific amendment and simplification of the law would proceed rapidly and safely. We do not despair of this. The barriers of prejudice have been broken by the late act; the next and most ber-the purification and consolidation of the statutes pressing step is that which we urged in our last numand reports. OF INJUNCTIONS. (Continued from p. 378). Whether the Court will grant an injunction on the primâ facie title of the patentee, or will send him to law first, depends on a careful consideration of the cir cumstances of each particular case. If there has been possession for a considerable time under letters-patent, although the Court may have considerable doubt whether the patent is valid, it will nevertheless protect it by injunction until the right can be tried at law. (Harmer v. Playne, 14 Ves. 130; Boulton v. Bull, 3 Ves. 140; Hill v. Thompson, 3 Mer. 622: see also Kay v. Marshall, 1 My. & C. 373, in which Lord Cottenham, referring to these cases, approved their principle, and applied them to a case on demurrer, p. 388 et seq.) But although a patent should be of long standing, yet if there has not been undisturbed exclusive possession of long duration, and doubt is thrown on the title, the Court will refuse an injunction. (Collard v. Alison, 4 My. & C. 487; Curtis v. Cutts, 8 L. J., Ch., 184). And although on a trial of the right at law a verdict is found for the plaintiff, yet if a rule nisi for a new trial is obtained, the Court will still consider the right undetermined at law. And if a patent has been but recently granted, and its validity has not been estaThe fusion of law and equity, when it is accom-blished at law, and the defendant denies and throws plished, will be but an instalment of the reform that doubt on such validity, equity will not in general act pon its own notions of the validity or invalidity of the tent, and grant an immediate injunction without ore, (Hill v. Thompson, 3 Mer. 622), but will send the aintiff to law before it will grant an injunction. The ourt, however, possesses and exercises great latitude. Bacon v. Jones, 4 My. & C. 433). If, however, an injunction has been granted in proction of a patent, of which the exclusive enjoyment as been undisturbed for several years, and the defendat is guilty of great delay in coming to dissolve it, me Court will not press on the plaintiff to try his right law at an inconveniently early period. (Bickford v. kewes, 8 L. J., Ch., 188). It was held in an early case (Baskett v. Cunninghame, Eden, 137) that on a conflict between parties, both aiming under patents, the Court could not grant an junction till the rights had been tried at law. There no modern decision overruling this doctrine as to a onflict between two patents. From the cases referred to, it will be perceived, that herever there is any considerable doubt as to the vadity of the patent at law, an injunction is either not ranted at all, or is only granted on terms, in order to revent irreparable damage before the title can be tried t law. The ultimate object of a bill in equity to protect a -atent is a perpetual injunction, which can in general nly be granted at the hearing; and it has been very stely decided, that where a patentee files a bill alleging nfringement, and praying an account and perpetual njunction, but does not immediately or within any reasonable time apply for an interlocutory injunction, ne cannot have a perpetual injunction at the hearing, f the defendant raises a question as to the validity of the title; nor will he be allowed to retain the bill, with iberty to bring an action. The course the Court will adopt in such a case is to dismiss the bill, with costs. Bacon v. Jones, 1 Beav. 382; S. C., on app., 4 My. &C. 433). But as an injunction suit to restrain infringement of a patent rarely comes to a hearing, the point generally alling for consideration in reference to injunctions on this subject is, whether there is such an extent of doubt on the title, or on the right of the plaintiff to ask for assistance in support of it, as to induce the Court to refuse an injunction, or to grant it only on terms. (See on this Harmer v. Playne, 14 Ves. 130). To obtain an injunction ex parte against an alleged infringer, the plaintiff ought to swear, at the time of making the application, to his belief that he is the original inventor; (3 Mer. 624; Sturz v. De la Rue, 5 Russ. 322); for although when he obtained his patent he might have very honestly sworn as to his belief of such being the fact, yet circumstances may have subsequently intervened, or information have been communicated, sufficient to convince him that it was not his own original invention, and that he was under a mistake when he made his previous application. And where a patentee has not accompanied his bill by a sufficient affidavit on this point, and fails in sustaining his injunction on other grounds, it will be dissolved with costs on this. (Sturz v. De la Rue, 5 Russ. 322). Equity will restrain other persons from selling after the expiration of the patent, as well as before it, articles piratically made during the continuance of the patent. (Crossley v. Beverley, 1 Russ. & M. 166, note). Review. The British Commonwealth; or, a Commentary on the Institutions and Principles of British Government. By HOMERSHAM Cox, M. A., Fellow of the Cambridge Philosophical Society, Barrister at Law, and Author of Treatises on the Differential and Integral Calculus. Post 8vo., pp. 600. [Longmans.] This exposition of the existing political, judicial, ment is an able performance, and will probably take and administrative machinery of the British Governits place as a text-book in the universities. The theoretical disquisitions are not diffuse, and the expository part is singularly clear, and so concise that the various topics included in the following extensive programme are adequately disposed of in a space not exceeding that occupied by Blackstone's first volume, (without the notes): The Principles of Government.-1. The duties of Government. 2. The rights of Government; social contract, &c. 3. The divisions of the offices of Government. The Legislature.-4. The British Legislature: assembling, prorogation, and dissolution of Parliament, &c. 5. The legislative power of the Crown. 6. The legislative power of the House of Lords; constitutional value of the Upper House; balance of power, &c. 7. Procedure in Parliament. 8. Passing of public bills. 9. Passing of private bills; objections to the present practice, &c. 10. Parliamentary documents. 11. Supply, and Ways and Means. 12. Cabinet and political parties; evils of party government, &c. 13. The purposes of parliamentary representation; class representation considered. 14. Parliamentary franchise; extent Parliamentary elections. 17. The nature and authoof constituencies. 15. Parliamentary suffrage. rity of public opinion. 18. Public meetings and the press. 19. Commissions of inquiry. 16. Judicature.-20. Divisions of law; sources of law, &c. 21. The Courts of Parliament and Privy Council. 22. The Court of Chancery. 23. The superior courts issued judicially. 26. Criminal trials at common law. of common law. 24. Trial of actions at law. 25. Writs 27. Trial by jury. 28. Courts of local jurisdiction: assizes, nisi prius, Central Criminal Court, justices of the peace, county courts, bankruptcy, admiralty, &c. Administrative Government.-29. The royal prerogative; succession to the Crown; forms of government and its committees. 31. The Secretaries of State. 32. compared &c. 30. Parliament; the Privy Council The fiscal administrative offices. 33. Military and naval offices. 34. Boards constituted by acts of Parliament. 35. Local administrative government; central and local government; municipal, county, and parochial officers, &c. International Government.-36. International statutes, treaties, &c.; diplomatic negotiations and officers; international executive; slave trade; armies and navies; balance of power discussed. Colonial Government.-37. Colonies defined; historical illustrations; government of colonies; colonial taxation; judicature; colonies classified and enumerated; principles of colonial government. Conclusion.-Remarks on the mutual responsibility of governing bodies and the vitality of the English Constitution. No attempt has been made to give a systematic and detailed account of the British Constitution since the time when Blackstone performed the task upon sound Tory principles, assuring his readers that there never had been an alteration made in the law that men had not afterwards found reason to regret. The merits of Blackstone's Lectures will secure their immortality; nothing that can be written will displace them from There is, indeed, a division of wrongs into public ar private, which is essential, and wholly irrespective the remedy, but that is not the division under ers deration-we mean the distinction between injuries, offences which affect individuals, and injuries or offere's which affect the community, independently of any dividanl damage; of which latter kind are vari offences against the Constitution or public order, such as treason, bribery, perjury on criminal trials, smvgling, mutiny, &c. the list of institutional works; but their faults and defects were such as to call for a companion or supplementary treatise, even at the time of their delivery; and the immense changes that have since come upon almost every branch of the Constitution have doubled the urgency of the want. Mr. Serjeant Stephen undertook his "New Commentaries" with all the confidence of incapacity, only expressing a doubt whether it was "reasonable to suppose that the plan would be found entirely free from defect, or the execution from inaccuracy." The plan, however, was Blackstone's, altered as one might alter the plan of a house by transposing the front and back rooms: the execution, done, on the Vinerian Lectures, such as modern humanity revolts at, only to be paralleled by the embowelling, quar-chapter is the important but generally misunderstool tering, and other cookery formerly awarded to traitors. All the merit of the New Commentaries is comprised in the tolerably accurate citation of modern statutes and decisions. An instance of the other defect above alluded t may be seen in the conclusion of the otherwise excl. lent chapter on the stability of the English Gove ment. The element of stability last mentioned in th one of the royal prerogative; and the consideration this is opened in a manner which leads one to expect a satisfactory exposition of its working. No such thing We are told that the prerogative is a regulating an Mr. Cox does not invite any comparison with Black-, controlling power, and how the influences of a wis stone, still less does he undertake to displace him, but¦ sovereign, a virtuous sovereign, an illustrious sovereira. leaving the historical investigation of the subject to a patriotic sovereign, and an energetic sovereign, be pursued in the first book of the Vinerian Lectures, in spectively operate to the desired end. Very wel Hallam, and elsewhere, he treats of the Constitution as it, knowing, as we do, that neither hereditary nor az exists at the present day, en leavours to distinguish the other kind of succession can render any one of thes vital from the formal parts of institutions, and to de- qualities permanent in a dynasty, we look next t ! scribe them according to their working results, taking, be informed by what contrivances our Constitution is occasion during this survey to point out defects as well made to extract an equally, or at least a sufficiently, as excellencies, and on the whole to make a panegyric beneficial regulating and controlling effect out of a on the Constitution which is satisfactory because it is foolish, a lying, a dissolute, a bigoted, an ambitious, c discriminating. a pig-headed sovereign, a king of cousins, a tailor king, or a king log. This is what the course of the arge ment leads us to expect; and this might have be done. We find, instead of this, something which converts the chapter into a dedication out of place-an! there an end." These blemishes, however, are few, and are more noticeable because they occur in a work of considerable merit. If we have dwelt too much on them, the following extract from the chapter on public opinion will make amends: Mr. Cox's view of things appears to us to be generally clear and philosophical, but his abstract disquisitions are rather suggestive than complete; he is more often happy in criticising the definitions of others than in framing his own, and he sometimes disappoints his reader, after opening up an investigation in a very hopeful manner, by unaccountably leaving it half finished. Thus, upon Blackstone's definition of public and pri- ' vate wrongs, that "the former are an infringement or privation of the private or civil rights belonging to in'dividuals, considered as individuals, and are therefore frequently termed civil injuries; the latter are a branch of public rights and duties which affect the whole community, and are distinguished by the harsher appella-that of all the world beside. There was a time when 'tion of crimes and misdemeanours," Mr. Cox remarks that this is no more than giving public and private wrongs other names, and establishes no definition of them, as the infringement of every right affects the whole community; and, after further illustration, he proceeds-" It appears to me, however, that a simple but sufficient distinction between private and public 6 "But though consentience gives weight to an opinion, it cannot of itself prove it. There have been cases in which the judgment of one man has prevailed against public opinion universally declared the earth to be immoveable: it moved nevertheless. It were an endless task to cite from history the occasions in which the judgment of whole nations has gone astray in matters of the most momentous importance to their welfare. Far more brief would be the task of enumerating the instances in which the national judg wrongs is, that the former infringes upon rights whichment has directed political action in according with 6 6 are essentially individual, the latter on rights which wisdom and justice only. The same sort of public are essentially general." But this is merely Black- opinion which reared the golden calf at Horeb enstone's definition in fewer words, and it is condemned by throned the goddess of reason in Nôtre Dame at Paris. the remark cited above. An injury to the property or In the one case, the lawgiver, by the strength of a to the person of another may be criminal or not, ac- wisdom not his own, brake the idol; in the other, it cording to circumstances, and a criminal injury may at had been well for France to have possessed rulers the same time entitle the injured person to a civil re-mighty, in like manner, to resist public opinion. And medy; but in every case it is an infringement upon an can we say that such public opinion is extinct? Dare essentially individual right-an individual right which we affirm that public opinion has ceased to set up the the public has a general interest in maintaining. There 'golden calf and the altar of reason? Or do we need is, in fact, no difference between the two classes of public more solemn rebuke of the pride of humanity, which and private wrongs which are intended both by Black-exalts popular judgment overmuch? To the end of stone and by Mr. Cox, except with regard to the renedy. Considered merely as wrongs, they are undistinguishable. Those wrongs which entitled the injured "If we trust to the teaching of history, we must look party to compensation or restitution from the offender for other tests of the accuracy of public opinion beare, while considered in connexion with that remedy, sides that which mere consentience affords. Public private wrongs; and those wrongs which it is thought judgment is not exempt from all the infirmities of inexpedient to restrain by inflicting a punishment on the 'dividual judgment; on the contrary, while on the one offender, independently of any recompense to the in-hand it possesses one claim to accuracy which private jured party, are public wrongs; and the same wrong may be in one aspect private, and in another public. time will resound the warning echo of that fearful 'cry, 'Not this man, but Barabbas.' judgment does not possess, on the other hand public judgment is subject to a cause of error to which pri |