that chiefly for the purpose of giving power to, and confidence in all that is already so valuable in its principles.

We propose that any one of these Judges shall decide a case in Equity in the first instance, with an appeal to the whole five Judges in Term; and that, agreeably to the present practice in a suit at law, there should be no other, as we conceive there can be no better, appeal than from the first decision in this branch of jurisprudence, to the five Judges in the Supreme Court. For a long time to come we think the country will be satisfied with this one substantial appeal; but if in some singular case there should still be a desire to press the matter further, the Judicial Committee of the Privy Council in England, it seems to us, should be the end of that true scale of ascent by which the best legal judgment can be had.

We do not propose this as the best arrangement under any circumstances, but as the best which this country in its present circumstances can offer; nor are we insensible to the argument that where five Judges of the Supreme Court will have to turn their attention to so many branches of the Law, they cannot be expected to reach the same eminence as when the sole time and attention of one individual has been bestowed on a particular department. Yet it must be remembered that when professional gentlemen of standing now reach the Bench, it is from a scene of laborious practice in every branch of our jurisprudence; and the knowledge thus acquired must necessarily be rendered more complete by constant practice as Judges, and be adequate to any effort put forth from the Bar. In the United States there have been very eminent Judges, and yet almost all of them have acted as Judges in Courts where, not only Law and Equity, but Admiralty Law, have been thus united; and the union of the two former powers extends to a very large majority of the State Courts. In 4 Kent's Coms. 163, Note (C) it is remarked that there are only four States which have Courts of Equity separate from the Supreme or Circuit Courts.

Even in England, where there are not less than seven Equity Judges, and where Courts of Appeal abound, the union of the Court of Chancery with the Courts of Common Law was, at the time of the last Report of the Chancery Commissioners, under deliberation, and only postponed as the subject of further consideration.

Mr. Justice Story in his first Volume on Equity, referring to one of the English Superior Courts, observes that "in some of the States of the Union, distinct Courts of Equity are established; in others the powers are exercised concurrently with Common Law Jurisdiction by the same Tribunal, being at once a Court of Law and a Court of Equity, somewhat analagous to the Court of Exchequer in England." And since the passing of a Statute towards the close of the Reign of George III., authorizing the Chief Baron of this Court, or one of the assistant Justices, to sit alone and hear causes in Equity, with an appeal to the House of Lords, our proposed change bears a still closer resemblance to the practice of the Exchequer, a Court having both a Common Law and Equity side, with at the same time a more urgent necessity for the change, and with a greater advantage as respects this country, in having an appeal to the full Bench of Judges.

We have not overlooked the difficulties which have been urged against this amalgamation, as to the Sittings of the Judges, and intermingling Jury trials with Equity hearings. But we trust we have been enabled to meet these difficulties by distinctly defining the powers of the single Judge, and those of the Court, which we have endeavoured to effect by always requiring one Judge to act where the Master of the Rolls now acts, and the Court to adjudicate where the Chancellor is now called upon when he sits as a Judge in Appeal. Where a Jury is to be summoned for any Common Law interlocutory enquiry, the time and place of its sitting must necessarily be for the discretion of the Judge who requires the aid of a Jury to assist him in giving Equity; and when the case is to be heard by evidence taken at the hearing in open Court, the same may be done as pointed out more at large in our accompanying details, either at one of the monthly Sittings at Fredericton, or at any of the Nisi Prius Courts where the greatest number of the witnesses reside, or the Court shall direct. Whether evidence is to be taken as now practised before a Master, or in open Court, will be decided when the points to be proved are settled by the Judge as hereinafter noticed; and if a case is to be heard at a Nisi Prius Court, it is to be after the Jury causes are over, when the Judge after a full hearing may at once decide, or take time to do so in all important cases as at present.

We regret the inconvenience this change may occasion to the present Judges of the two Courts, in obliging them to turn their attention more directly to departments of jurisprudence, to which, since reaching the Bench, they have been unaccustomed; but while in this and in some other respects hereafter adverted to, their duties will be increased, we believe from the various changes we have introduced in the practice of both Law and Equity, greatly simplifying, and in many instances entirely discontinuing the use of many portions of it, those duties will be in those respects diminished. Nor are we without the hope that from the strength and support which will be experienced by a consultation and judgment of five learned men, with the increasing confidence of the profession and the country, they will ere long be satisfied with this alteration.

We have maturely considered the important question which, in England, has of late occupied so much attention, that of abolishing the office of Master in Chancery, and should have been prepared to imitate the example of that country; but from the vast difference between their judiciary system and ours, we have been unable to recommend any change for the better without a corresponding change in that department. It is to be remembered that in the Court of Equity alone in the Mother Country there are seven Judges, who under the new system, with each a Chief Clerk having powers corresponding generally to those of a Master, and a second Clerk, are able to accomplish all that was formerly done by the Masters, besides taking the evidence in Causes, in order that they may form a better judgment, as in Common Law Courts, of the value of the testimony.

Although much of this evidence will by our plan be taken before the Judge on the hearing, with all the advantage of a decision on what he himself hears and sees, it would we think be quite impossible for the five Judges to perform any more duties; and we cannot see that we can be better served in those cases in which Masters will still be required, than b Gentlemen already well accustomed to their business. At the same time it will be seen the Court will have power to order any Barrister, if no Master live convenient, or for other good cause, to report on certain matters, and also scientific persons when necessary; besides it will not be possible with the pro

posed changes unnecessarily to protract matters; nor has the evil ever existed in this country, although the system is the same, to any thing like the extent prevailing in England.

In referring to the improvements we have proposed in the Equity procedure, a careful perusal of the Code now submitted might perhaps suffice without further observation ; but we think it desirable to notice, in addition to the explanations already given, a few leading particulars. In the first place, we have prepared our proposed alterations in such a form that if they meet the approbation of the Legislature, nothing further will be necessary than to incorporate them at once with the revision of the Acts of Assembly in their appropriate place.

It will be seen also that we have been indebted to the Imperial Act passed in 1852 for many of the improvements here introduced, while we were at the same time pleased to observe a number of the changes of that Act, and the Rules passed in accordance therewith, to have been long since anticipated by the valuable Rules made during the tenure of office of the present Master of the Rolls.

It may be necessary to mention that without the preparation of an entire code of practice, which would be a work of enormous magnitude, and which we were not called upon to attempt, it was not possible to do more than improve or reform the present system; wherever therefore the Rules here presented do not embrace all cases which may occur, the existing practice of the Court of Chancery in this Province must be resorted to.

The whole is however subject to being further modified, for the purpose of extending the proposed provisions, by Rules which the Judges are authorized to frame from time to time, as has been extensively done in England since the passing of the late Statute for improving the Practice in Chancery.

In one respect we have altogether departed from the old mode of proceeding, by commencing every suit, unless where an Injunction is sought, with a Summons briefly indicating the object of the suit, so as to give the party the opportunity before a heavier expense is incurred of settling with the plaintiff.— This is in conformity with the practice at Common Law, which we think is wisely adapted to prevent a debtor from being plunged at once into an expensive suit before, by notice, he has been warned of the consequences.

The proceeding also against a person out of the limits of the Province is, we think, very tedious and expensive, when it is considered that a Decree made in such cases is subject to being reconsidered within certain periods of time.

In imitation of the late Common Law Procedure Act passed in England, we at once substitute for the Act 3 W. 4, c. 19, (which makes an order of appearance served on non-residents necessary to entitle the plaintiff to a decree) the service of the summons itself, heretofore held insufficient because out of the jurisdiction of the Court, and instead of proceeding against an absent person, (under the Act 48 G. 3, c. 2) by Bill filed, subpœna issued, affidavit of party having absconded to avoid service, or being twelve months out of the Province after cause of action accrued, an order for appearance founded on proof of this fact, and this order published in the Royal Gazette and posted up where he last dwelt, we authorize the Judge to make the order for appearance on affidavit of the absence of any person, non-resident or otherwise, and of prima facie grounds for filing a Bill, and to order the Bill pro confesso, if no appearance be entered at the expiration of the time mentioned in the order. We are of opinion that this more simple course, together with preserving, under some modification, the right of the defendant to have the decree reconsidered, will be sufficient to protect any absent party from injustice. At the same time there is nothing in the case of an absent debtor more than that of a non-resident, to prevent a plaintiff from having his summons served wherever the party may be found out of the jurisdiction, and proceed according to the manner we have pointed out. The last Act also affords no remedy where it could not be shown that the defendant had absconded to avoid process or had left before the cause of action accrued.

As every defendant may be required to answer the Bill of the plaintiff on oath, we think the latter should be subject to the same practice, especially since in conformity with the late English Statute, the Bill is no longer to be hypothetical, but a plain narrative of facts. Both these improvements are the more important, as heretofore what a party stated in his Bill could seldom be made evidence against him, from its garbled and often untrue statements, which in fact was a part of the system now happily at an end in England. We have there