We are surprised to find so aspiring a jurist as Lord WESTBURY apparently ignorant of the true nature and history of equity. He actually told the House of Lords that courts of law know nothing of trusts? Why trusts were originally created and recognised at common law long before courts of equity as distinct from law ever existed. So long ago as the reign of EDWARD I., and even when uses-which were but trusts were recognised in courts of law, as avoiding the burdens of the feudal system; and in the reign of HENRY VIII., when uses were turned into estates, the judges again and again pointed out that these species of trusts had for ages been recognised at the common law. Nearly two centuries ago, HOLT pointed out that uses were only a species of trust, and a common bailment is only a trust of personal chattels or money, which, on account of its simplicity, is practically enforceable at common law. It was only discretionary trusts which were regulated and enforced in equity, merely by reason of the defect of common law machinery. The courts of common law had not or chose to fancy that they had not--a sufficient staff of masters or officers to make all those inquiries by means of which the administration of trusts was carried on in equity. But there was no necessary difficulty in any such administration by a court of law; and by a recent statute fraudulent trustees are, along with fraudulent bailees, made liable to the criminal law. The difference, therefore, between law and equity is, as Lord CAIRNS said, not one of principle at all, but entirely one of judicature and procedure. Now, to effect a fusion of judicature and jurisdiction, and to enable judges of one court to exercise the jurisdiction of another, statutory powers would be required, and such powers are to be conferred by the Bill, and their exercise is to be rendered compulsory.

But the efficiency of their exercise must mainly depend upon the rules of practice, and the efficiency of the rules of practice must mainly depend upon their elasticity; that is, on the existence of some powers of easy modification, adaptation, and alteration. It would be impossible for any human intellect, or for any combination of intellects, to anticipate all the exigencies that might arise, and guard infallibly against them all. New cases, unforeseen difficulties would constantly arise, and without a power of constant alteration and adaptation there would be the certainty of great practical inconvenience. But if, to avoid this, the court had a power of altering statutory rules, then what would be gained by having them statutory? On the other hand, what might not be lost by waiting for them? In all probability the measure itself would be delayed for years to come. Anyone who reflects on the exigencies and uncertainties of politics, and the enormous pressure of work imposed upon Parliament, the obstacles interposed to the carrying of an enormous Bill of 500 clauses through both Houses, the numerous chances against its success, and the certainty of its being much marred in its course through the ordeal of "committal" in each House-must be sensible that the probability is that it would be very long ere the work

was done by Parliament, and that when it was done it would not be well done.

Upon this point, indeed, Lord WESTBURY appears to agree with us, for he proposes a commission to frame the rules, which implies that Parliament could not do so. But a new commission would only interpose further delay. There has already been a commission, and the Bill is founded upon its report. The members of a new commission would be the same, or nearly the same, and what advantage would be gained? The plan of the Government is to throw the duty primarily on two members of the Cabinet, including the LORD CHANCELLOR, that is, upon the Government itself, going to work at once, and with power to call to its aid any member of the Privy Council, who also would, of course, resort to any assistance they required, and would, of course, consult the Judges. In other words, the Government are to undertake the duty with the aid of the Judges, or the Judges are to do it under the auspices of the Government. What practical difference does it make which way it is put, and what course could possibly be better? What better security could the country have that the work will be well done, and that it will be done at once. The Bill in its first form threw the duty

directly on the Judges. It was objected that they might delay it. The Bill then gave the initiative to the Government, and charged them with the duty primarily. And now it is objected that the duty belongs not to them but to the Legislature. But, on the contrary, it belongs primarily to the Government, for, as Lord BACON said, the administration of justice is the first duty of Government. It is a duty, certainly, which they cannot discharge without the aid of the Judges, and that aid they can call for, and no doubt it will be rendered when required. What course could be wiser or better? And are not the objections to it somewhat captious? We should have thought it quite safe (as we said) to leave the duty to the Judges. After all they must work the system, and they are the best persons to prepare the rules by which it is to be worked. But it was objected by the opponents of the Bill that they could not be relied upon. Then the Government proposed to render themselves responsible for the work. And now the objection is that the duty does not belong to them. We hardly think this is dealing candidly with so important a subject. The only objection made to it, other than that which we have dealt with, was that the distinction of the legal and equitable jurisdiction was still to be kept up. But this is mere matter of detail, and with great submission, we venture to think that those distinctions and divisions will still be necessary, for there must ever be distinction of jurisdiction, and though a common law Judge may exercise the equitable or other peculiar jurisdiction in easy cases, there will often be others which it will be more safe and more proper to refer to the division more versed in such matters, and therefore more fit to deal with them. There is no evil in distinction of jurisdiction; the evil was in an iron and arbitrary separation between them, by reason of an entire separation of the judicature. Under the new system the legal business will circulate freely through the court, and pass easily from one division of it to another, as convenience may dictate. There is no evil therefore, in distinction of jurisdiction. It is the rules should be elastic in order to be effecevident, however, that it will be necessary that tive, and this they can never be if statutory.

BLOTS IN THE BANKRUPTCY ACT. A BILL to consolidate the law administered in the court for Divorce and Matrimonial Causes has been introduced into the House of Lords by Lord PENZANCE. This is a step in the right direction. Who is more competent than the Judge of that court, with the assistance of its officers, to amend a law of the working of which he has had such practical experience? Lord PENZANCE has set an admirable example, branch of the law. Had the administration of and one to be emulated by the chiefs of every the law of bankruptcy, in years gone by, been placed under a governing head, we should ere this have had a code satisfactory to all. As it is we are still experimentalising, and a new system has been introduced which promises to be as great a failure as any of its predecessors. universally condemned, as affording impunity to the dishonest, are as rife as ever, and already there are four liquidations by arrangement for one bankruptcy. These, of course, are not made, public, but we have before us the circumstances of a case where debts amounting to several thousand pounds were released by a promise of a shilling in the pound payable in three months without security. The new system, if anything, is worse than the old one, for now, instead of an arrangement requiring the assent of a majority, representing three-fourths in value of all the creditors of a debtor, there need only be a majority and threefourths in value of those who think fit to attend the meeting. An extraordinary resolution of creditors, which is a resolution passed by a majority in number and three-fourths in value of creditors, and afterwards confirmed at a second meeting by a majority in number and value, when duly registered, releases the debtor from all liabilities. The creditors' boon of 10s. in the pound, promised by the Legislature, is a delusion, for every debtor, as was the case under the old system, can always manufacture friendly creditors sufficient to carry his proposal under a composition petition.

Arrangements out of court, which were 80

Much as is to be regretted this great blot in the Act, there are others, as to the course of pro

cedure, which we trust the Chief Judge, with his great experience, will correct by the issue of rules more consonant with the spirit of the Act than those promulgated. A petition for adjudition of bankruptcy presented by a creditor who three days prior thereto realised his security by what was alleged to be a fictitious sale and at a great sacrifice, in a recent case came before the court. There were no other creditors except of trifling amount and, for the purpose of setting aside the sale, a bill in Chancery had been filed. The debtor, although in the terms of sect. 9 unable to deny the debt, asked, under the circumstances, for the dismissal of the petition.

Sect. 9 provides for the stay of proceedings under a petition where a question of debt or no debt is to be tried in a court of law, but makes no provision for a case of this description, and thereupon as a matter of course bankruptcy will ensue. The suit in Chancery consequently drops; the nominee of this petitioning creditor will become trustee, and refuse to continue the suit, and hence a practical injustice is, by the new Act, legalised.

This is but a solitary instance of the misfortune of new hands legislating upon matters of which they have had little experience, and hence, as we have observed, the necessity that the amendment of any special branch of the law should devolve on its chief administrator, who, with the aids at his command and the experience he must have gained, would best know what is required to do justice to all.

THE season for revival of these public nuisances has begun, and the great profits accruing from them to the speculators threaten the suburban populations with an enormous extension of their periodical invasions by the criminals and roughs of London. Remonstrances are addressed in vain to the Government through the newspapers. The populations thus victimised call out loudly for protection. The mischief is admitted, and the necessity for suppressing it is confessed; but nothing is done. The answer returned by the the help of the Legislature. The existing law authorities is that nothing can be done without is powerless to abate the nuisance, and the Government has too much upon its hands already to undertake a matter that concerns only the the outskirts of London. well-being of a few hundred thousand persons in dispute the validity of the excuse. But the evil It is impossible to is fast growing, and the remedy need not therefore be indefinitely postponed. Some private member should take it in hand. Why should not Lord GEORGE HAMILTON, or Lord ENFIELD, or Mr. CHARLES BUXTON, bestir himself in the matter? It will not be difficult or troublesome. A very short Bill will suffice, and inasmuch as suggest to them one that is directly in point. Parliament loves to be guided by precedents, we Two years ago, fairs were got up by speculators for private profit, precisely as the suburban races are got up now. nearly the same results, bringing together They produced very all kinds of bad characters from London, to the infinite annoyance and demoralisation

They were not, indeed, quite so noxious as the of the neighbourhoods in which they were held. suburban races, for they were not so frequented by roughs and pickpockets; but nevertheless the Government determined to abolish them, in deference to the desire of the inhabitants to whom they were a nuisance. Accordingly, an Act was passed (31 & 32 Vict. c. 106), entitled "An Act for the Prevention of the holding of unlawful Fairs within the Limits of the Metropolitan Police District." This Act empowered the Commissioner of Police to direct one of the superintendents to summon the owner or occupier of the ground on which any such fair should be announced to be holden before a magistrate to show his right to hold such fair, and failing to show such right, the magistrate is to declare such fair unlawful, and the police are to give notice of such declaration by affixing copies on or near the ground where such fair is holden, or proposed to be holden; and after such notice has been posted for six hours, he may remove any booth, standing, or carriage upon the ground for the purpose of such fair, and take into custody any person pitching or fixing any booth, standing, or tent. And every person resorting to such ground with any show or instrument of gambling or amusement, and every person convicted of any of the offences, is to be liable to a penalty not exceeding 101.

A very slight modification of this wholesome statute would serve effectually to suppress the much greater nuisance of suburban races.

little short of a rebellion among the people who for once will combine with the "interests" for common resistance to the invasion of the liberty of the one and the property of the other.

DAMAGE.

A CASE to which a correspondent refers as having been tried before Mr. Justice Lush, and in which his Lordship was in doubt whether he could venture to allow a case to go on where a plaintiff, a woman, complained of a slander concerning her chastity, without proving special damage, illustrates, in the strongest possible way, the hardship of the law relating to that subject. It also proves the danger which attends interference with existing jurisdictions. Formerly there was a jurisdiction in the Ecclesiastical Court which might inflict a penalty upon anyone slandering a woman by impugning her chastity. The jurisdiction of those courts in cases of defamation has, however, been taken away by 18 & 19 Vict. c. 41, and there is now absolutely no remedy for such a wrong.

THE LICENSING SYSTEM. MR. BRUCE has announced the abandonment for SLANDERED MODESTY AND SPECIAL the present session of his promised measure for the better regulation of the licensing system. According to the statement made he had contemplated not merely an amendment Act, but a Bill that should codify the entire law for the government of public houses. The secret has been well kept in what manner it was designed to deal with the first step in the matter-in whom the law should vest the power of granting or refusing permission to keep a public house. A government authority has been tried in the case of the beerhouse and wine licences, and it proved so entire a failure that the power was, by common consent, taken away again and restored to the justices. But this does not content the parties who are crying out for extensive changes in the liquor laws. It is their opinion that the justices are too liberal in the grant of licences, and that by the readiness with which they listen to applicants, they encourage an injurious excess of these establishments. This party demands that the power to licence should be vested in Town Councils, vestries, or other local bodies, who should be empowered, if they please, to prohibit the sale of any intoxicating liquor by any person within their boundaries. The certain effect of such a law would be to convert every parish election into a local conflict between the innkeepers and the teetotallers, in which the latter would generally get the worst of it, for innkeepers have great influence, and they would use it unscrupulously and justifiably for self protection by the return of candidates pledged to their support. Moreover, neighbouring parishes would rival each other in the effort to secure the custom of the tabooed parish. If the labourer is forbidden to buy his beer in Mudcomb hamlet, he will go to Dustcomb or to the nearest hamlet that refuses to vote a similar prohibition, looking to the profit to be made out of the supply of Mudcomb, and its companions in misfortune. Englishmen have lost much of their old love of individual liberty, and submit more patiently than formerly to be dictated to by a tyrannical majority; but we doubt if they have yet sunk so low as to suffer their beer first, and then their pipes to be taken away from them without a resistance that no Government would like to face. If, however, it should be determined not to commit so formidable a power to the ballot box, we fear that nothing will remain but to continue the existing jurisdiction, although it is by no means desired by the magistrates, for it is a thankless office.

But a great deal might be done in the way of improvement without going so far. The distinction between beer, spirits, and wine to be consumed on the premises, should be abolished. Two classes of houses only should be licensed, one the public-house proper, the other the shop in which liquor is sold, not to be consumed on the premises. The former should be looked upon as the club of the classes who cannot afford a private club. They should be considerably varied in qualification. They should be licensed to sell all kinds of meat and drink. Publichouses not selling fermented liquors should be licensed of a less value, and at a less charge. All should be placed under strict police supervision. The licence should be deemed to be that

of the keeper of the house and not of the house itself, so as to silence the objection now so often raised against the refusal of the licence that the innocent owner and not the disorderly tenant is really the party punished. As for further restrictions upon the hours, during which such public-houses shall be opened, a great deal is to be said on both sides. To close them entirely on Sunday would be to deprive the poor of their only holiday, and would be rightly looked upon by them as intolerable tyranny exercised by those who are better off, and able to provide their own indulgencies in their own houses. Much of the question now deferred is indeed fraught with difficulties, and will assuredly bring a hornet's nest about the ears of any member who endeavours to deal with it honestly. If he makes such amendments only as the powerful "interests" will accept, the restrictive party will be thrown into a paroxysm of rage. If, on the other hand, he strives to satisfy them he will moot what will be

Starkie refers to this injustice (Starkie on Slander, 3rd edit., p. 320). He there says "the necessity of proving a specific loss falls with peculiar hardship upon unmarried females, who are thereby frequently debarred from maintaining actions for imputations most unfounded and injurious. In no other case can it be more fairly presumed that the scandal, if believed, will produce detriment, than where an unmarried female is charged with incontinence; and therefore in no other case is the plaintiff better entitled, in reason and good sense, to the benefit of that presumption in order to obtain a remedy for the scandal; and, what is of infinitely more importance, an opportunity of fairly meeting and rebutting the calumny." And he adds, "No species of slander can be more cruel and malicious in its origin, none more pernicious in its consequences; yet, as the law at present stands, words imputing unchastity to a woman, whether married or single, are not actionable unless some specific damage can be proved, or the charge be committed to writing. The suffering party, whose peace of mind is destroyed and prospects ruined, has therefore no remedy."

It is observed by the same writer that the courts have been overpowered by the weight of authorities; but it would seem that no regard has ever been paid to the fact that the remedy in the spiritual courts has been taken away. The authority of Comyn's Digest relied upon by Cockburn, C. J. in Roberts v. Roberts, 33 L. J., Q.B., 249, is an authority which ought to have very little consideration in these days, and all the older cases draw refined distinctions which a strong court ought to disregard and find in favour of the justice which is so loudly proclaimed as opposed to the injustice of case law. For our present purpose we shall not examine the old cases. We shall not, therefore, detail the various states of fact under which the Judges have held that a plaintiff has just missed proving what is considered to amount to special damage in the eye of the law. There are two cases, however, occurring within the last ten years which illustrate in a way particularly strong, the miserable condition of the law on this head, and we shall refer to them principally for the purpose of giving the views of the profession as there expressed-of Judges as eminent as ever sat upon any bench.

The case of Lynch v. Knight which went to the House of Lords, 9 H. of L. Cas. 577, was an action by a wife for slander, whereby she lost the consortium of her husband. The alleged slander imputed to the wife that she had been almost seduced by B. before her marriage, and that her husband ought not to allow B. to visit at his house. The ground of special damage alleged was, that in consequence of the slander the husband forced her to leave his house and return to her father, whereby she lost the consortium of her husband. But it was held that the cause of complaint thus set forth would not sustain the action, for that the alleged ground of special damage did not show (in the conduct of the husband) a natural and reasonable consequence of the slander. This judgment of the House of Lords reversed the decision of the Judges of the Queen's Bench in Ireland, which fact Lord Brougham lamented in his judgment. Foremost, however, that learned Judge lamented the state of the law. He said, p. 593, "I may lament the unsatisfactory state of our law,

according to which the imputation by words, however gross, on an occasion however public, upon the chastity of a modest matron or a pure virgin is not actionable without proof that it has actually produced special temporal damage to her; but I am here only to declare the law; and, being of opinion that in this case the special damage relied upon arose, not from the natural and probable effect of the words spoken by the defendant, but from the precipitation or idiosyncracy of the plaintiff William dismissing the plaintiff Jane from his house when he was only cautioned not to let her mix in society. I must, with sincere deference for the authority of the majority of the Irish Judges, advise your Lordships that the judgment be reversed." It is remarkable that at the close of his judgment the noble Lord again expressed his concurrence in the opinion of Lord Campbell, who died before judgment, as to the unsatisfactory state of the law. But he repeated this apparently only for the purpose of more emphatically condemning the law. He concluded thus: "The only difference of opinion which I have with my noble and learned friend is that, instead of the word 'unsatisfactory,' I should substitute the word 'barbarous.' I think that such a state of things can only be described as a barbarous state of our law in this respect."

The other case to which we allude we have already cited, namely, Roberts v. Roberts, of which the head note runs, "where words were spoken imputing unchastity to a woman, and by reason thereof she was excluded from a private society and congregation of a sect of Protestant Dissenters, of which she had been a member, and was prevented from obtaining a certificate without which she could not become a member of any other society of the same nature, held that such a result was not such special damage as would render the words actionable." The judgment of Chief Justice Cockburn shows in all its baldness the iniquity of this law, and winds up with an appropriate condemnation. "I am of opinion," he said, "as the declaration now stands, no cause of action is shown, and make the words actionable, fails in having that the special damage which is set out in order to effect. It is admitted that by the law, as now settled, the loss of the consortium vicinorum would not be sufficient as special damage; and I am of opinion that the loss of membership in this society either amounts to no more than the consortium vicinorum, or else that it amounts to the loss of the nominal distinction that she was enabled to call herself a member of this society. There is, therefore, nothing to show a loss of any real or material advantage; and the plaintiff's counsel has failed to make out that there has been any loss of the seat in the chapel, or of the opportunity of attending at the divine worship in that place. If there had been anything substantial, or which by right could attach to the membership of the society, and which the wife had lost by reason of the words spoken, I should have thought that sufficient special damage could be shown, and I think that the law is very cruel in preventing a woman who has been thus wantonly slandered, from bringing an action for the purpose of vindicating her character; but, as the law now stands, and which I very much regret, such an action is not maintainable unless some substantial or material damage can be shown to have resulted from the speaking of the words. If upon inquiry it is found there is any. thing which can be averred sufficiently as special damage, the plaintiffs may have leave to amend the declaration, but at present we must give judgment for the defendant."

Mr. Justice Blackburn, whose adherence to strict legal principle at all cost is well known, thought "it must be admitted that the law upon this subject does not stand upon a very satisfactory basis (!) but it is clear that words imputing unchastity to a woman are not actionable unless special damage can be shown; and that can only be done by showing an injury to the material interests of the person slandered."

Apart from the hardship of the general proposition under discussion, the legal principle as to what is necessary to constitute the damage which will ground an action is opposed to every sense of justice. On the face of it it is ridiculous that a person who has lost a dinner by reason of a slander may bring his action, as it was put in one case, whilst mental suffering or sickness supposed to be caused by the slander will not support an action: (Allsop v. Allsop, 5 H. & N. 534.)