HC Deb 17 July 1828 vol 19 cc1749-62
Mr. Hume,

in presenting the petition relative to the proceedings in the Prerogative Court and the conduct of sir John Nicholl, observed, that in order to the better understanding of the complaint, he should state shortly the outlines of the transactions that had given rise to it. In 1821, a person of the name of Evans died possessed of property to the value of 1,700l. or 1,800l.; and unfortunately left two wills; one in favour of a niece, and the other in favour of an adopted daughter. Administration was granted to one of the parties named Evans, who claimed under one of the wills, and took out letters of administration, and obtained a probate in December 1821. The present petitioner, Peddle, was induced to institute proceedings in Doctors' Commons on behalf of his wife, as the legal heiress to the testator, and applied for the purpose of obtaining a probate. He now complained, that a most expensive litigation had been continued for four years and a half, the costs of which were entirely disproportionate to the amount of the contested property. The property in question was about 1,700l. or 1,800l., and 2,500l. had been drawn from the pockets of the parties in seeking to have the possession of that property finally adjudicated. A court which sanctioned expenses so enormous, must be a public nuisance, seeing that it rendered difficult of attainment that justice which ought to be as cheap and as accessible as possible. Mr. Peddle commenced his suit in December, 1821, and in 1824, judgment was pronounced against him, confirming the probate obtained by the adverse party. But it was a singular circumstance, that costs were not giver, to the person who opposed the petitioner. The expense of this proceeding on the part of Mr. Peddle, amounted to between 600l. and 700l. The petitioner was induced, by the representations of his Proctor (Mr. Toller) who stated his decided opinion that the decision against him involved an unjust and corrupt judgment, to commence an appeal to the High Court of Delegates. He was confirmed in his determination to adopt this course by the offer of Mr. Toller to charge nothing for his services, but to content himself with the payment of expenses out of pocket (which he stated could not exceed 200l.) if the judgment appealed against were not reversed. The appeal was commenced in July, 1824, and came on to be heard in May, 1826; and the result was, that the previous decision was confirmed, but without costs against the appellant. In June, 1826, Mr. Toller brought in his bill of costs to the petitioner, to the amount of 640l. At the same time he sent him a letter stating that his opinion of the merits of the case remained unaltered. The lion, member here alluded to the observations which Dr. Lushington had made on Tuesday night, respecting the petitioner's attorney, Mr. Walker. The learned gentleman had said, that Mr. Walker was a pettifogging attorney, who had been convicted of perjury and attempted extortion. Mr. Walker was not at present in London, but he had no doubt he would arrive to-morrow, in order to answer the charge. Upon this point he had received a letter from a barrister, assuring him, that Mr. Walker was a most respectable man; and that a short time since his professional brethren in Bristol had presented him with a piece of plate worth 100l., for having succeeded in getting struck off the rolls two attornies who had infested that city. It therefore appeared to him, that the learned member had unnecessarily aspersed the character of Mr. Walker.—Mr. Toller's bill of costs, for the original suit, was 687l., and that for the appeal was 384l. making altogether 1,071l. The adverse party had to pay costs amounting to 1,600l., which left her only a surplus of about 200l. out of the property. On looking Over the petitioner's bill of costs, he found that the learned gentleman below him had been rather singularly circumstanced with respect to this cause. He had been retained for the petitioner, and after going on to the end of 1821, he discovered that he was retained for the opposite party. He therefore considered that, in this question, the lion, and learned gentleman should not be attended to as a man perfectly disinterested. He was not free from the abuses of the court. He must be hostile to the petitioner, because he was engaged for the hostile party in the suit. The petitioner, when he received Mr. Toller's bill of costs for the appeal, applied to that gentleman for particulars of the account. He refused to furnish them; in consequence of which the petitioner applied to have the bill taxed. The officer, whose duty it was to tax the costs, informed the petitioner, that his presence would be necessary. The petitioner said he knew nothing of the subject, and requested that his attorney, Mr. Walker, might be allowed to appear for him. The officer refused this request, on the ground that it was contrary to the practice of Doctors' Commons. The petitioner then gave notice of a motion, praying that Mr. Walker might be allowed to be present at the taxing of the costs, as his friend or attorney. The motion came on for hearing on the first of July last. Sir John Nicholl asked Mr. Toller, whether he had said, that his former decision was corrupt. Mr. Toller replied, that the allegation was untrue. The judge then refused to allow the affidavits of the petitioner and Mr. Walker to be read; on the ground, that they contained a libel on a person connected with the court, thus attaching more weight to the simple statement of Mr. Toller than to the oaths of two other persons. Dr. Lee, the petitioner's counsel, argued that the petitioner had a right to appear at the taxing of the costs, by friend or attorney. The judge, however, decided otherwise. The petitioner asked for a table of fees. He was told, there was none. It was evident that without such a table it was impossible for him to ascertain whether the charges in the bill were correct, The affidavits of the petitioner and Mr. Walker stated, that the canons of the court required that such a table should be kept. Here the hon. member read several extracts from the rules of the court, to support the assertion of those individuals. Agreeably to the 136th canon, an application was made to the court for suspending the proctor, and it was met by the learned judge by an observation, that he would not suffer himself to be interrupted in the execution of his duty on the judgment seat. In order to be prepared for the results which were apprehended, the petitioner asked the short-hand writer on this occasion, to be very particular in taking down every word of the proceedings on the case. And the short-hand writer appearing before another of the judges of the Consistorial Court, Dr. Adams, in order to be sworn, that learned judge stopped him short by observing, "I can't swear you in this instance, because there is no cause before the court." Here was a manifest injustice done to the petitioner; for the court did not hesitate to receive as authentic the mere statement of Mr. Toller, a proctor in the court, although he would not receive as authentic, or under any circumstances, the deliberately collected evidence of the short-hand writer in the cause. At the opening of the court, Dr. Lee rose and addressed the learned judge, sir John Nicholl; who stopped him by observing, that he would not be interrupted by any allusion to the case of "Peddle and Evans," which was not in fact before the court; and therefore the application now relative to the taxing of costs in this instance was, on the part of the proctor, altogether irregular. Now, with submission to the opinion of that learned judge, he must conceive, that any cause must be considered in the Prerogative court, as well as in any other, to be before the court, as long as it was unfinished. In consequence of this dictum of the judge, Dr.-Lee was not allowed to make a single observation. In allusion to the affidavit which accompanied this application, the learned judge, sir John Nicholl, remarked, "I will not allow this affidavit to be read, as I did before. A proctor is not warranted in making such an application as this, because some dissatisfied suitor chooses irregularly to complain of the proceedings in this court. He owes a duty to the court, as well as to the suitor; and I will not allow any matter now to be exhibited in this irregular way, accusatory, or rather criminatory, of the conduct of the officers of this court." A second affidavit was exhibited, which was not at all criminatory, but only contained facts; but this affidavit met with the same refusal. In that court, perhaps, it might be the practice, and quite consistent, to use the description of intimidatory language adopted by the learned judge towards the petitioner: and it appeared the judge intimated, that should the proctor in this case not be prudent enough to avail himself of the hint conveyed by this intimidation, he would proceed to the summary practice of suspending him from the performance of his official duties. This was any thing but impartiality between the parties: and there could be no doubt that either were equally entitled to be allowed the inspection of these tables of fees, under the orders of the court, of a date so long preceding this transaction. The learned judge informed the court, moreover, that this application to displace the principal registrar and his deputies was so ex-parte, and irregular, that malice might be inferred towards those officers. Every motion, it was true, might be considered, and in fact was, ex-parte, whilst affidavits were exhibited only on one part. The judge, considering this was a departure from the practice which would authorize him in proceeding to extremities, when Dr. Lee again attempted to address him, exclaimed, "Officers of the court, are you prepared to enforce my authority and that of the court? Proceed," said he, "with the first cause. I desire that Dr. Lee sit down, or walk out, or that such force should be made use of towards him, as would be necessary to remove him from court." On this occasion, too, as if to strengthen the hands of the judge, one of the registrars called out, "pray the court, in the name of its officers, to assert itself and protect its dignity." It appeared that Mr. George Jenner was registrar of the court of Arches, held three other offices in the court, and transacted a large business in the capacity of Proctor, in the house of Jenner, Bush, and Jenner. This gentleman, with Mr. Dynely, and another registrar, in fact, sat in judgment, to decide upon the quantum, and tax his own costs. Was it extraordinary that suspicion should be excited under such circumstances? Dr. Lee had only begged that certain orders which had been issued should be hung up in a conspicuous situation in the court, and the Proctor's-office, so as to enable their clients to see what was fairly due on account of costs. The application that these should be affixed in the proper offices was wittingly refused by the learned judge—a fact which brought the complaint fully home to sir John Nicholl, whose decision in 1823 against an individual for receiving fees without authority, was on record. Dr. Lee's memorial was presented in February, 1828, before the case of the petitioner was before the court, so that when that case came on, sir J. Nicholl could not plead ignorance upon the subject. After the lapse of four months, sir J. Nicholl stated, that he had consulted several gentlemen of the bar, and had decided that it was not necessary to take any notice of Dr. Lee's memorial. A similar petition was presented to Dr. Lushington, judge of the Bishop of London's Court, on the 9th of July, and on the following day he said, that he declined making any order, and should follow the line of conduct sir J. Nicholl had pursued in the court of Arches. Thus there was great reason to complain of the conduct of both judges in respect of the table of fees, and the time seemed come, when an inquiry ought to be instituted into the proceedings and constitution of the courts in Doctors' Commons.

Dr. Lushington

said, he was confident the House would extend its indulgence to him, when it recollected, that to him was committed the justification of a learned judge not present, who had long been a member of that House, had belonged to the profession of which he was an ornament for between forty and fifty years, and after filling the office of king's advocate, had, for nearly twenty years, been judge of the Prerogative Court of Canterbury. In the first place, he wished to be permitted to account for the absence of the distinguished individual, at whose conduct the petition chiefly aimed. To the astonishment of that right hon. judge, he first saw in the notices of Friday last, a notice for the Tuesday following, in which he was denounced by name as a public delinquent. For what reason all fairness and delicacy of feeling had been disregarded in this case, he was at a loss to know. To the liberality of the hon. member for Montrose, the right hon. judge certainly owed nothing; but above all, it was extraordinary that the hon. member I should so denounce a party, hitherto with- out reproach, before he had even read the documents on which so serious an accusation was founded. Had the conduct of the right hon. judge been liable to imputation, and had he even expected that the charge would be preferred in the way in which it had been brought forward, still it was not the ordinary course for the member who had undertaken the case to come down on the day he had appointed, and then avow that he was not prepared to go into the subject, because he had not had time to consider whether the accusation was or was not well-founded. On that day the House had certainly manifested its sense of the treatment the judge had received, by not requiring that he should attend to rebut the charge. Sure he was, that, although the right hon. judge owed much to the House, he was not indebted to the hon. member for Montrose for the uncourteous and unceremonious manner in which he had entered the notice on the proceedings of the House, and afterwards postponed the statement of the case set out in the petition. If a judge did not perform his duty, there were higher tribunals to which a suitor might appeal; but what he protested against was, that suitors should seek to bring forward their cases for discussion here, whilst there were courts of ulterior jurisdiction provided by the wisdom of the laws. It was not fair or proper that such cases should be adduced, and treated by persons ignorant of the proceedings and forms of law. What would be the consequence if appeals were constantly made to that House from the decisions of the court of King's-bench? He did not say that judges should not be made amenable to the country for misconduct; but he did not think that, where opportunities for appeal were afforded in other courts, appeals should be made to that House. With respect to the complaint of the amount in issue being exceeded by the costs, he could only say, that it was impossible to observe a proportion between the amount in litigation and the amount of costs in seeking to recover it. The hon. and learned gentleman proceeded to eulogise the zeal and industry of the right hon. judge of the Prerogative Court, in whose court, he could speak from experience, there were no arrears, but that all the cases were disposed of at furthest within a month or six weeks of the time which they were set down for hearing. He had spoken, on the former night, in strong terms of Mr. Walker; nor would he now retract one expression he had used. His statement was, that Mr. Walker had improperly conducted himself, and had sworn to what was not true. In corroboration of these charges, he could produce a letter of Mr. Walker's, dated the 5th of May, 1823, in which he complained, that the burthen of the costs would fall on him, the party not being able to discharge them, and that he had already advanced 150l. He could also produce an affidavit by the same individual, in which he swore, that he was wholly disinterested, and not at all responsible for the costs. The member for Colchester had just whispered in his ear, that all that was meant in the affidavit was, that Mr. Walker was not legally responsible. He hoped to God no man would be permitted to take advantage of such a subterfuge as that just now suggested by the hon. member for Colchester; and if an attorney or solicitor should make such an attempt, he hoped the party would be visited with the indignation of the court. In the first instance, the petitioner employed Toller and Son as his proctors; he remained silent for seventeen months, and it was not a little remarkable that the next person he applied to was the only one who had been suspended three times, once by lord Stowell and twice by sir John Nicholl, the name of that person was Mr. William Geering Clarkson. The advocate he employed was Dr. Lee, who had been practising in that court for twelve years, conducting himself in such a manner, that the only excuse that could be made for his extraordinary conduct towards the court and the bar was the very great doubts entertained respecting his sanity. For twelve years he had been silent, unless when he thought proper to intrude his eloquence upon the court—and that was the person selected to be the Dux facti upon this occasion. The motion of Dr. Lee, of which the House had heard so much, was for the suspension of the registrar and the three deputy registrars, and he was heard in support of it for nearly three hours by sir John Nicholl, who pronounced it a most unheard of proceeding to introduce a motion which had nothing whatever to do with the suit before the court, and that even if he were entitled at all, the parties must be brought before the court, previous to the hearing of such motion. It was rather hard that those gentlemen should be so brought forward, for no other reason than their not having exhibited a table of fees. Now in reference to this, he would just remark, that in 1597 a table of fees was drawn up by the archbishop of Canterbury. Subsequently, in 1734, under an inquisition issuing from the Crown, these fees were regulated; and upon the regulations that then took place, no increase, except of 6d. in a single instance, had taken place. When Dr. Lee required the table of fees to be exhibited, he was presented with the report of the commissioners, in which the fees of the officers were given; but with this he was not satisfied. If what he required was a table i of the proctors' fees, at no time had there been such a table. Yet he came forward and swore that he was deprived of the advantage of being permitted to see the table of fees when he taxed the bill. An affidavit of this description deserved the most severe animadversion. The next passage of it charged the registrars with taxing their own bills. Now, before such a charge was preferred, there should have been some evidence in support of it. The practice was, that the registrars never taxed their own bills; but always referred them to the other registrars, who had no interest in them. The registrar had no power to decide any disputed item; it must come before the court, to be there decided; and even then the determination of the court could not enforce payment; for the money was not recoverable at last but by an action at law. It was impossible that stronger checks could be placed upon abuse.—The last complaint was, that proctors were appointed to the office of registrar; but this had been the practice beyond the memory of man; and it was indispensably necessary that they should be persons acquainted with the business of the court.—lie submitted, that the right hon. Judge, in refusing to hear Dr. Lee, had only discharged his bounden duty, and preserved the decorum of the court, he appealed to the House whether, on the statements before them, it was not evident that the right hon. Judge had performed his duty with equal credit, firmness, and impartiality. The learned gentleman then adverted to the statement, that some of the deputy registrars were relatives of the learned judge. The fact, he admitted, was perfectly true; and he was happy that he had it in his power, by some letters written many years ago, to exhibit the character of the right hon. Judge in its true light. The learned gentleman then read several letters which had passed between the rev. Mr. Moore, in whose gift the office was in 1817, when Mr. Dyneley was appointed, and sir John Nicholl. The letters strongly expressed the anxiety of Mr. Moore to appoint an efficient officer. It was singular, but true, that though the right hon. Judge was thus confidently consulted, Mr. Moore was in utter ignorance of his relationship to Mr. Dyneley, until the fact was avowed by sir John Nicholl himself. There could be no doubt of the fitness of Mr. Dyneley for the office, and it had never before been imputed as matter of blame to any person having patronage, that he had used it to promote the advantage of his relatives, when they were duly qualified. It had never been made a matter of censure to lord Ellenborough that he had appointed his own nephew to be master of the Crown Office. Lord Kenyon and other judges had never hesitated to bestow the offices in their own gift on their relatives when they were fit and proper persons to hold them. He was not aware that it was necessary for him to say a word more upon the facts of this case. It was difficult to follow the hon. member for Aberdeen through the manifold and unconnected details into which he had entered. If he had omitted any charge of importance it was because he could not bear in his mind all that hon. member's loose and rambling allegations. He was not, however, very anxious about that point: what he was most anxious about was, that after a full hearing of his case, the right hon. Judge should be acquitted of all misconduct and malversation in his office.

When he heard the hon. member talk of the extravagant fees of this court, and object to the remuneration of a judge, whose whole emoluments were but 3,000l. a-year; and who, after discharging the arduous and complicated duties of that office for twenty years, and being now nearly seventy years of age, was not entitled to a single shilling on his retirement, and received no greater reward than the wisdom of this House fixed a century ago, for the salary of the judge of the Prerogative Court, when he had not a tenth part of the duties to perform—he must say, that it did become those who made complaints of this nature, to be provided with some evidence in support of them. In noticing the observations which had been made on the subject of fees by the hon. member, he must say that he did it with the most ineffable contempt. He could not bring himself to use words sufficiently strong to express his disregard of all that had been said by the hon. mover upon that subject. He lamented that a petition of this nature should have been presented against an individual filling so eminent a judicial situation; especially as the feelings of the learned judge, from his not having been much tossed about amongst contending parties, were more than ordinarily acute on the subject. He had always been politically opposed to the right hon. Judge, but he felt it his duty to bear testimony to the unspotted purity of his judicial conduct.

Mr. D. W. Harvey

said, it was not his intention to touch upon that part of the petition which complained of the conduct of sir John Nicholl; for, in his opinion, there was not the shadow of a foundation for the complaint. He had this reason for saying so—the decision of sir John Nicholl had been appealed from, and the tribunal to which the appeal was made did not consist of a single individual belonging to the court in which the right hon. Judge presided. Three common-law judges were called in to decide the appeal, and the result was a confirmation of the judgment of sir John Nicholl. There was, however, another branch of the case, to which the attention of the House had been very properly called, for the reason assigned incidentally by the learned doctor —namely, that at present there was no redress for the injury of which the petitioner complained. Of what was it that the petitioner complained? That being a litigant in one of the ecclesiastical courts in a suit by which he endeavoured to establish his claim to a property not exceeding 1,700l., he had received on the conclusion of it a bill from his proctor for 1,100l.— One item of this bill amounted to 303l. The petitioner proposed to tax this bill, and his proctor referred it, inconsequence, to the registrar of the court. But, as had been stated by the learned doctor, with a view to create a prejudice against the petitioner, he was an ignorant and illiterate man, who scarcely understood what he had to sign or write, and he therefore asked, as was not unnatural, that the taxation of the bill of costs should be superintended by his solicitor. And what honest reason could be assigned that it should not? There was a bill of many sheets and many figures, containing many items, some of which were very large.— He dared to say the learned doctor thought a fee of twenty guineas to one, and twenty-five to another learned civilian was very moderate; but still it was not wonderful that, under such circumstances, a poor illiterate exciseman, as he had been sneeringly called, should wish that the transaction should be watched by a vigilant attorney. It was said, that the registrars never taxed their own bills. Was there ever a more lame or impotent defence set up against an accusation than this? True, they do not tax their own bills; but they tax the bills of one another. It now appeared that there was in this country a court exercising spiritual dominion over every parish in England, in which alone wills could be proved and letters of administration granted, and in which all questions arising out of them must be decided; and that, in all cases of litigation tried in that court, no matter what was the magnitude of the charges, or the poverty of the party who had to pay them, there was no redress against their enormity, save the conscience of the knot of registrars, who were all three practising proctors, and cousins of sir John Nicholl to boot. The learned doctor had treated this evil as one of little importance, because it was a matter of long duration. Now, was there any evil of the law which was not of long duration? Was there any abuse in our judicial system which might not plead prescription in its favour? Would any man of common sense contend, that it was right for any individual to audit his own accounts? And yet these registrars, who were the only persons who could tax bills, were themselves practising proctors, and, what was more material, had more practice than all the other proctors in Doctors' Commons put together ! If the learned doctor would move for a commission to examine into the state of the ecclesiastical courts, he would pledge himself to bring proctors before it, as respectable as Messrs. Toller and Son, to prove that it was a crying evil, that the registrars should be permitted to be practising proctors.

The Attorney-general

perfectly agreed with the hon. member for Colchester, that there was not the slightest reason for throwing the remotest blame on the right hon. Judge. He would further say, that if sir John Nicholl had done what was desired by the hon. mover, he would be liable to impeachment for conduct at once tyrannical and unjust. It would have been most unjust if he had removed the registrars; who were not, as hon. members supposed, appointed by the judge. He defended the conduct of sir John Nicholl, and pronounced a high eulogium upon him as a member of parliament, a judge, and a private gentleman. Sir John Nicholl, like sir Peter Teazle, in Sheridan's comedy, had left his character behind him; but it was in no danger in that House, where gentlemanly feeling prevailed on all sides. If the two branches of the prayer of the petition could be separated, he had no doubt the hon. member for Montrose would be the majority and minority, and whole population on that side of the question. But he had yet hopes that a penitence—a late penitence —not of moral feeling, but of judgment, would convince the heart, and affect the sensitive sensorium of the hon. member, and that he would retract his attack upon sir J. Nicholl. He thought the House should treat the petition with contempt. He could not help hoping that the hon. member would, with the warmth of the season, relax his feelings, and state that he presented this petition as a member of parliament, but that seeing it was a gross and scandalous libel, he was willing to withdraw it.

Dr. Phillimore

said, that this was not the place to remedy any grievance of which the petitioner might have to complain. The courts of law were open to him if he required redress. After many years' experience he would assert, that there was no court in the country in which justice was executed in a more satisfactory manner, and with less expense, than in the Prerogative Court. He had known the learned judge of that court for thirty years, and could bear testimony to his purity and integrity. The charges brought against him were utterly unfounded.

Mr. H. Davis

strongly condemned the conduct of the hon. member for Aberdeen, in thus bringing forward charges, and keeping them suspended over the heads of individuals; whilst there were other steps, by which an aggrieved party could seek his remedy. He had known the right hon. judge for thirty years, and could bear testimony to his spotless integrity.

The petition was brought up and read. —On the motion, that it do lie on the table,

Mr. Hume

denied that he had ever been in the habit of bringing forward charges against individuals upon slight grounds, or of allowing them to remain over longer than was necessary. He denied that the present petition was any libel against sir John Nicholl, and contended, that the principle of the allegations it contained had not been refuted.

The Attorney-general

submitted, whether it was fair that a petition of this kind, containing such strong criminatory charges against a learned judge—charges, too, which were utterly unsupported—should be laid upon the table of the House.

The question, "that the Petition do lie on the Table," was then put, and negatived.