Page:The Green Bag (1889–1914), Volume 13.pdf/47

 Rh

sion of labor. Law and equity applied clivers rules of right and wrong to the same matters and afforded different remedies for similar wrongs. The common law refused to recog nize claims and defences which equity al lowed, and solemn judgments obtained from courts of law on one side of Westminster Hall were nullified by injunctions obtained from the equity courts on the other side of the Hall; indeed, a court would often be found giving judgment as a court of law on legal grounds at one term, and then at a later term of the same court, sitting in equity, enjoining the enforcement of that very judgment on equitable grounds. To obtain complete redress the suitor was driven back ward and forward from law to equity, from equity to law, and even then often failed to attain it. The common law judges were deaf to equitable pleas, while, on the other hand, the court of equity, notwithstanding its maxim that it delights to do justice wholly and not by halves, frequently turned the suitor over to the law courts with his wrongs only partially redressed. Whenever it was sought to prevent a threatened injury, to preserve the subject matter of litigation in tact, to discover documents, the common law was compelled to resort to equity to sup port even a legal claim. The court of chan cery, in turn, was little adapted by its organ ization for the successful determination of questions of fact, and for such purposes con stantly availed itself of the assistance of the common law courts. In theory the two juris dictions were well defined, but in practice the suitor was often perplexed over the proper forum. Nevertheless, he was required to choose at his peril. Suits in chancery were constantly lost because it appeared at the hearing that the plaintiff might have had a remedy at law, just as plaintiffs were non suited at law because they should have sued in equity, or because some trust or partner ship appeared in evidence. Adjective law properly exists for the sake of substantive rights, but under such a system the bewil dered suitor was justified in believing that

legal procedure was expressly devised to produce uncertainty, expense and delay. In the domain of the common law the three ancient superior courts flourished side by side. The Court of King's Bench still maintained jurisdiction of civil and criminal causes alike, and had supreme authority over all inferior tribunals with its weapons of mandamus and prohibition. The Court of Common Pleas retained jurisdiction over the few ancient forms of real actions that still survived; and the Court of Exchequer still retained in revenue, equity and a few other matters a separate jurisdiction. Although these courts had originally different func tions, they had by means of various devices gradually acquired concurrent authority over personal actions, and no practical necessity remained for the maintenance side by side of three similar tribunals. Notwithstanding the vast increase in the wealth and com merce of the country, and the rapidly increas ing litigation arising out of the industrial revolution, these courts stood stolidly on the ancient ways. In accordance with an anti quated system, they sat for the determina tion of legal questions during only four short terms of three weeks each, at the end of which all unfinished business went over until the next term. The procedure of the law courts was based upon the system of special pleading. As a metaphysical system special pleading was truly admirable: one can understand how the schoolmen reveled in it. But however admirable as a species of dialectic, special pleading was little calculated to meet the requirements of a practical system of proce dure for the realization of rights. It led inevitably to excessive technicality and the solution of mere legal conundrums, and the real merits of a controversy were apt to be lost sight of long before the contest over mere forms was determined. A system which based its claims to consideration upon its precision, it was honeycombed with fic tions. The action of ejectment is an immor tal example. The arbitrary classification of