THE ADVOCATE 297
VOL. 78 PART 2 MARCH 2020
This very difficulty was discussed in England after the passage of the
Judicature Act in issues of The Law Times of 1882:
There is one matter for congratulations about existing judicial arrangements
– there seems to be no limit to the powers of locomotion on the
part of the judges. If law and equity are not fused they ought to be, and if
judges do not become versatile lawyers (at whose expense is immaterial)
it will be remarkable. Common law judges are at Lincoln’s-inn, equity
lawyers are on circuit, and one, Mr. Justice Field, is interchangeable at
present between the Division Court at Westminster and Mr. Justice Kay’s
The consequences of this state of things may sometimes be peculiar,
judging from an unopposed appeal disposed of by the Court of Appeal on
Tuesday, and which we reproduce here. We are sure it will be appreciated
by our readers:
Re: Cottrell-Woods v. Cottrell
The action in this case, which was by specific legatees for an ordinary
administration order, was tried by Mr. Justice Manisty, sitting for Mr. Justice
Kay, on the 21st of January last. The learned Judge made an order
directing, among other things, that the trusts of the will, so far as they
related to the legacies, should be carried into execution by the executors;
that the specifically-bequested funds should be transferred to the trustees
of the will; that the receiver who had been appointed should do no further
act; and that until one of the plaintiffs (who were infants) attained
21, any of the parties should have liberty to apply. And his Lordship
refused to order the administration of the testator’s real and personal
Mr. Rigby, Q.C., and Mr. E. Widdrington Byrne appeared in support of the
appeal on behalf of the plaintiffs; the appeal was not opposed.
The Court discharged the judgment appealed against, and in lieu thereof
gave the ordinary judgment for administration as at the suit of specific
legatees providing for the transfer into Court of the funds specifically
bequeathed, and for the continuance of the receiver.
Lord Justice Brett asked where the case had been tried.
Mr. Byrne. – At the Rolls Court. Mr. Justice Manisty was sitting for Mr.
Justice Kay, who was sitting for Mr. Justice Chitty at the time.
Lord Justice Brett. – Where was Mr. Justice Chitty?
Mr. Byrne. – He was on circuit at Manchester.
It is singular that the Master of the Rolls is not reported to have said anything.
(15th July, 1882, p. 189)
In the Equity Courts the arrears are no doubt, relatively speaking, serious,
and this is of course in a great measure due to the fact that most of
the judges of that division have now to go circuit. Nothing could well be
more unfortunate than the present system under which several of the
equity judges have to be replaced whilst on circuit by judges of the
Queen’s Bench Division – a system under which, while three of the for-