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depend upon usage immemorial, and so form part of the common law.
But the expression "common law," used in a still wider sense, will also denote certain institutions and remedies which have been either newly accredited to the common law courts by certain statutes or improved and facilitated by the same means; e.g., an injunction may now be obtained from a common law court.
It may be mentioned also that some courts specially created by statute, such as the Bankruptcy and Divorce Courts, embrace provisions and are guided by principles which are peculiar to courts of common law and equity alike.
To each superior court of common law there is in this State) a civil and a criminal side. In the former, civil actions as between subject and subject, or between the Crown and a subject, are tried; while, in the latter, the subject may be called upon to answer any grave charge preferred against him -at suit of the King.
Equity is a species of unwritten law which is founded upon natural justice or upon conscience.
The province of equity is to temper the severity of the common law, or, in the words of Lord Bacon, to "supply the defects of the common law;" that is to say, that where a man is justly entitled to a remedy which the courts of common law, in virtue of their fixed and invariable principles, do not recognise or will not give, he may come into equity and obtain relief. For example, a trustee of property is regarded in law as the absolute owner, but in equity the entire beneficial interest is given over to the cestui que trust, or person for whose benefit such property was vested in the trustee; or, in certain cases of breach of contract for the sale of land, where the law could award damages only, equity will decree the delivery of the possession of the land itself to the purchaser, so that he may obtain that for which he bargained. Formerly a suitor seeking relief in equity must have petitioned the Sovereign in Council-when the matter was usually referred to the Lord Chancellor, the Keeper of the King's conscience; but, in the reign of Edward III., the Chancellor became a permanent judge, and the Chancery Court a distinct jurisdiction empowered to grant relief in cases where none could be obtained at common law.
In England, the jurisdictions of law and equity are now amalgamated. The High Court of Chancery is here represented by the equitable jurisdiction of the Supreme Court the two systems being still kept separate and distinct.
The jurisdictions of the Equity Court are three in number, viz. the exclusive jurisdiction obtaining in the case
of trusts, specific performance of contracts, etc.; the concurrent jurisdiction, which is exercised in cases where the common law is unable to give complete relief; and lastly, the auxiliary jurisdiction, which acts in aid of such suitors in the common law courts as possess an equitable right to relief, which those courts do not recognise or cannot give.
PROBATE AND ADMINISTRATION.
Previously to an Imperial statute passed about the twentieth year of Her late Majesty, the subject of wills (so far as the testament in question related to personal estate), and the administration of the estates of such persons as died intestate, lay within the jurisdiction of the Ecclesiastical 'Courts, which were anciently presided over by high dignitaries of the church, and more recently by ecclesiastical judges.
But by the above-mentioned Act, the authority which the spiritual courts formerly exercised in respect of such matters became vested in a court established for the purpose, and called the Court of Probate.
In this State these matters formerly fell within the ecclesiastical jurisdiction of the Supreme Court as granted by the Act of George IV., commonly known as the "Charter of Justice." At length, however, by a local statute known as the "Probate Act of 1890," founded upon the Imperial enactment previously noticed, a Court of Probate was established, to which the granting of probates and letters of administration is now solely committed.
In virtue of a special provision of the Probate Act, and of a short amending Act, all the estate of a testator or intestate is now deemed to vest upon his death in the Chief Justice or senior puisne Judge of the Supreme Court until probate or letters are granted to the executor or administrator, so that the executor no longer derives his title from the will itself, but from the court, as in the case of an administrator. For this reason also the will is no longer effectual to vest the legal estate in land in a devisee, but a conveyance or an acknowledgment of his title must be procured from the executor.
Prior to a statute creating a Court of Divorce, passed in England early in the last reign, the law of divorce and matrimonial causes was there administered by the Ecclesiastical Courts, or courts spiritual.
Anciently there were two kinds of divorce, namely, that á vinculo matrimonii and that á mensâ et thoro (that is, a separation from bed and board); for the latter a sentence of judicial separation is now substituted. The divorce á vinculo could only (prior to the above enactment, and except as hereafter mentioned), be obtained from the courts spiritual
on the ground of some disability existing before marriage, e.g., impotency, or a prior contract for marriage with some other person; and by the sentence the children (if any) became bastards. The divorce á menså might be obtained on the ground of the adultery of either husband or wife, or of the husband's cruelty; that is, upon facts which inclined the court to consider it undesirable that the parties should be further bound to live together.
But the divorce á vinculo might also, in some cases, be obtained on the ground of the wife's adultery, by means of a private Act of Parliament. The law of divorce and matrimonial causes is now administered in this State by a court created for that purpose by the "Matrimonial Causes" Act of 1873. Previously to the establishment of this court the desired separation could only be effected by the costly agency of a private Act of the Legislature.
Bankruptcy is defined as a "method whereby a man's property is made liable, under particular circumstances, to be transferred for the benefit of his creditors generally."
The law of bankruptcy was founded by a statute of Henry VIII. (35 Hen. viii., C. 4), which provided that the "creditors of such persons as obtained other men's goods and then removed to unknown places, or kept within their houses and there consumed their means-without paying their debts, might complain to the Lord Chancellor (or to certain other high officers specified in the statute) to the intent that steps might be taken in regard to the bodies, lands, goods, and chattels of the offenders with a view to payment of all the creditors rateably." A statute of Elizabeth (13 Eliz.: C. 7) then ordained that any merchant who offended in the above manner should become bankrupt, and empowered the Chancellor to appoint certain persons to proceed in the matter. So far the bankrupt, though stripped of his resources and regarded as a criminal, could obtain no relief; but at length, by the Act 4 Anne, C. 17, a bankrupt who had conformed to the law became entitled to a discharge from his previous debts.
By later statutes persons answering to the description of "trader" might be made bankrupt on the commission by them of certain other acts, in addition to those specified; and the debtor (even though a trader) might institute proceedings against himself. And eventually the bankruptcy law passed from commissioners appointed by the Lord Chancellor to the administration of a permanent court, called the "Court of Bankruptcy." At the present day all persons (of full age), and whether traders or not, are alike liable to be made bankrupt -including a married woman, in respect of any separate property she may possess.
Aboriginals-Supplying Liquor to.
Any person, other than a licensed publican, who sells, supplies, or gives any fermented or spirituous liquor, or a mixture of the two, to any aboriginal native of this State is liable to a penalty not exceeding £10.
And any licensed publican who allows any aboriginal native of Australia to be supplied with any spirituous or fermented liquor in or on his licensed premises, is liable to a penalty of not less than £2 nor more than £10. The person who actually supplies the liquor is equally liable, and it is immaterial whether the liquor is for consumption on the premises or not. Two justices are required in each case. In default of payment of the penalty imposed, imprisonment for a period proportionate to its amount (in terms of the scale given at page 193) may be imposed.
Actions at Law.
ACTIONS AT LAW CLASSIFIED.
There are, in this State, two classes of action at common law-personal and mixed.
Personal actions are brought to recover personal property or damages for an injury; while mixed actions (represented here by the action of ejectment) afford a means of recovering real property, and damages against the party detaining it.
Personal actions include all claims-founded in contract, for redress for personal violence, for injuries done to personal property, and for injuries to real property-except where the plaintiff seeks to recover land, when he must resort to the action of ejectment.
Ejectment, the mixed action by which possession of land is recovered, may be brought in the following cases, viz.: in ordinary cases where possession of land is sought to be recovered; by a landlord for non-payment of rent, or for holding over after the expiration of a tenancy; and also (in certain cases) by a mortgagee. The practice has been much improved and elaborated by a recent statute. The action is begun by a writ of summons, in which is substituted the premises to be recovered, for the amount claimed; and, though there are no pleadings, the action of ejectment is tried in the same manner as other actions at law.
Personal actions are divided into two classes-actions ex contractu, or those founded upon contract; and actions ex delicto, or those founded upon tort. A tort is a wrongful act -such as a libel, a trespass, etc.
Actions of contract are thus subdivided
1. Actions of covenant, which are brought to recover damages for the breach of a covenant or promise made by deed or specialty.
2. Actions of debt, which are brought to recover debts or sums certain, whether due by specialty or by simple contract-which may be by writing not under seal, or without writing.
3. Actions of assumpsit, which lie for recovering debts or damages for the breach of any simple contract; this is a very common form of action, and is brought on sales of goods, promissory notes, services rendered, and many other transactions of everyday occurrence.
4. Actions upon contracts of record, which lie for enforcing judgments and recognizances.
Actions of tort are subdivided into
1. Actions of trespass, which lie for injury to real or personal property or to the person, when accompanied with actual force.
2. Actions of trespass on the case, which lie in respect of injury to real or personal property or to the person where the act causes no immediate injury, but only by consequence, e.g., seduction of a man's servant, whereby he loses her services.
3. Actions of trover and conversion, which lie for the purpose of trying a disputed right to the possession of goods and chattels; or to recover damages for their wrongful conversion.
4. Actions of detinue, which lie where a plaintiff claims the specific recovery of goods and chattels or damages for their detention.
5. Actions of replevin, which are brought for the recovery of goods unlawfully taken under colour of distress for rent. TIME WITHIN WHICH ACTIONS MAY BE BROUGHT.
The time during which the various actions may be brought is fixed by the Statutes of Limitation as under :
Actions of trespass (to land), trespass on the case, trover, detinue, assumpsit, and debt (not secured by deed)—within 6 years.