§ Order of the Day for the Second Reading read.
The LORD CHANCELLORmoved the Second Reading of this Bill, which was one of those referred to in the Royal Speech, and was framed upon one of the reports of the Commission appointed to inquire into the Process and Practice of the Superior Courts of Common Law. Considering the circumstances under which the Bill had been presented to their Lordships, independently of the nature of the Bill itself, he did not feel it necessary to urge any reasons for the Bill beyond those which would present themselves to their Lordships' views, or wore offered by the Committee in their Report. Their Lordships were aware that the law was distinguishable into two branches: the one, that part of the law by which rights were adjudicated, and the other, that which regulated the course of proceeding, by which the questions of right were presented to the Courts for adjudication. The present Bill related to the latter department of law. It was intended to supply the defects and remedy the abuses by which the several steps in the course of litigation for the decision of rights had hitherto been accompanied. The Bill followed the whole course of a suit from its commencement to its final determination in a Court of Error, remedying the deficiencies and removing the defects which occurred at every step or stage of the proceeding. The present system of procedure had originated in a very remote period, when the course of justice was administered under very different circumstances; and though times had changed, yet, at the present day, the forms of procedure were still the same, the ancient system had remained, and the consequences were that in many instances results had followed which did not belong to it at the time the system was originally established, and which had never been contemplated by the framers of these proceedings. Originally the proceedings in our Courts of Law were not by written pleadings, as now, but were put in by counsel ore tenus. Formerly, after the 238 defendant had answered to the writ and made his appearance in the court, the plaintiff or his advocate stated his case, or (as, in technical terms, it was called) "counted" or "declared" the nature of his cause of complaint. The defendant or his counsel then made objections in point of form, or presented an answer to the plaintiff in substance. The objections made in point of form were then and at once answered by the plaintiff, and immediately decided upon by the Court. If the objection were allowed, there was an application instanter on the part of the plaintiff to amend, which was generally granted. And, on the other hand, if the objection failed, judgment was given at once against the defendant, or he had judgment of respondeat ouster, by which he was called to answer over in some better manner on the merits on some day then fixed. The objections of form having been overruled, the Court then went to the merits of the case. Those objections were numerous, and any noble Lord might read in Reeves' History of the English Law, vol. ii. page 344, not less than seven or eight such objections urged and answered in succession, in the same case, on the same day, and all overruled, and the defendant at last obliged to answer on the merits. Their Lordships could see very easily what different results would have followed had written proceedings been the practice. As a check upon these objections, however, it was provided that if a party craved time to answer to the substance of the "count" or "declaration," he thereby waived all right to take formal objections; and when the day arrived on which he was allowed to "impeach," he was compelled, when he answered or "pleaded," to meet objections taken in like manner on the part of plaintiff's counsel, and was obliged to amend or answer instanter; and a similar course was pursued when the plaintiff replied to the answer or "plea," until the parties having thus pleaded and replied to each other, the proceedings were reduced into writing, and the "issue" in which they resulted was set down for trial. Since those ancient times, the quantity of business had so increased that it would be impossible for those proceedings to be carried on in succession ore tenus; therefore the complaint or "declaration" of the plaintiff had to be reduced into writing, and the defendant had necessarily some time to consider it; and if he answered it in sub- 239 stance, or only by a formal objection, some time was also necessary for the plaintiff to reply, or to meet the formal objection; so that when the written proceedings are set down for hearing, it sometimes happens in our own time that "hearing" takes place six or twelve months afterwards. Of course this made a great difference as to formal objections, which originally had the effect of securing precision and regularity, without any delay, expense, or injustice to the opposite party; whereas now the most frivolous objections could be taken, and the cause, to a considerable degree, delayed and obstructed, or often indeed ultimately decided upon a point irrelevant to the merits of the matter in issue. Similar observations applied to the ulterior proceedings. And their Lordships would perceive how differently formal objections were considered in ancient times to what they were in the present day. Formerly all causes were tried at Westminster Hall. Then came first the statutes of "assizes," which allowed them to be tried in the county once, and afterwards twice, a year; and then the statutes of nisi prius, (reign of Edward I.), on which all causes were tried twice a year; but still the same form was continued as if the cause had been tried in Westminster Hall. When, therefore, the "issue" was "made up," a writ went down from the Court to the sheriff of the county, directing him to summon a jury to attend the court at a certain period, at which it was supposed or feigned that the cause would be tried; but as it was known it could not be tried at that time, the jury, of course, did not appear; and then there was another writ to the sheriff, called a distringas, stating that the jury had (contrary to the fact) made a default, and directing him to "distrain" them by a certain penalty, and to have their bodies at Westminster at a certain other day, "unless before" (nisi prius) the justices of the king should come into the county and the place where assizes were held to try the causes; and all this because the ancient process, no longer applicable, is notwithstanding retained. Supposing, however, the parties got to issue, and the cause came down to be tried, as according to the present course of proceeding—if there were too many parties joined as plaintiffs, or too few, the plaintiff was nonsuited, that is, defeated and lost his cause for the time, notwithstanding that the debt was undoubtedly due, for the cause of action had accrued to some of the 240 plaintiffs; and, on the other hand, in certain actions, if there were too many defendants sued, the plaintiff failed as against all, although he had an unquestionable claim against some. These anomalies had been brought about by the alteration of circumstances in the course of time. Now, it appeared that in 1846 146,000 writs were issued; of which only 2 per cent ever came to trial, only 5 per cent went so far as "declaration;" so that not more than 7 per cent arrived beyond the writ. This showed that nearly all the writs issued were settled before the time arrived for "appearance;" and that all the rest of them had been commenced for undisputed debts or claims. There were provisions in the Bill for reducing the cost of proceedings in cases of this class; and their Lordships would see, that, considering the very small proportion which went to trial, it was desirable to render the expenses in the prior stages of proceeding as small as possible. The present Bill, as he had already observed, travelled through every stage of the suit. It first provided that when a writ was issued it should have an endorsement stating precisely what is claimed for debt, and how much for costs. This would give the defendant an opportunity of knowing whether there was anything in the amount of the debt claimed to which he objected. If the defendant did not "appear" to the writ within eight days, judgment would be "signed" upon the writ without the expense of a "declaration," or of "interlocutory judgment," or "final judgment," according to the nature of the action. He thought that their Lordships would agree with him in thinking that the "declaration" gave little or no material information to the defendant in ordinary actions. It did indeed state whether the action was brought for goods sold or delivered, or on a bill of exchange. But if the causes belonged to the class he was referring to—those of ordinary debts and claims which the defendant did not dispute—there was no occasion why the cause should proceed to "declaration," with "plea" and interlocutory judgment, because the writ would give the defendant due notice what the claim was, putting him upon his guard if he meant to defend; and if he did not appear in court within eight days to defend, "final judgment" would be "signed;" and the result would be, that the costs would be reduced at least one fourth of what they would at present amount to, 241 where the cause travelled in the course described. With regard to formal and technical objections, they were altogether abolished. Many of them were connected with matters no longer material. For instance, originally the jury in every case came from the vicinity (visne) of the parties and of the transaction in question, and therefore every material fact alleged in the declaration was required to be accompanied with an averment, not only of time, but of place, in order that the Court might see what, the "venue" must be, that is, the place whence the jury must come which should try that matter of fact, if denied, and put in issue. But now that juries came from the county at large, this of course was immaterial; yet it very frequently gave rise to objections. Numerous other objections could be taken in a form called "special demurrers," which would be altogether abolished. Very early statutes had been passed (after the original oral course of pleading was abandoned, and the present system adopted), requiring that formal objections should be stated specifically by way of "special demurrer," as distinguished from those legal objections which went to the merits of the case. These "special demurrers" often remained many months upon the paper, awaiting a hearing; the present Bill abolished altogether all grounds of "special demurrer," that is to say, such objections as were only formal. Besides these, however, there were occasionally slips made in the pleading, which really were material—omissions of some important allegation, perhaps essential to the maintenance of the action or of the defence. The opposite party could at present pass that by and proceed to the trial; and when the other side has succeeded, move an "arrest of judgment," upon a declaration, or for judgment non obstante veredicto (notwithstanding verdict), and thus deprive the party who succeeded at the trial of all the benefit of his success; or even might delay still longer, and sue out a writ of error after judgment had been given upon the verdict, and reverse all the proceedings in a superior tribunal. The Bill required that all these objections should be taken at an earlier stage, if at all, and would allow of no writ of error to reverse a judgment, except where the objection had been taken in the Court below. Thus their Lordships would see that the Bill travelled through the whole course of a suit—from the "writ of summons" to the "writ of error," dispensing altogether with numbers of forms, 242 abolishing many statements, and simplifying all. Although it could not be expected that a Bill thus extensive in its operation could be rendered so perfect as to be free from objection, yet he believed it would remove much of the odium now resting upon proceedings at law, and would go as far as law could go to secure to a party success in an honest suit—so far, at least, as to protect him from technical objections. He would not travel through all the clauses of the measure (some of which might possibly be considered capable of improvement in the Committee), but, persuaded it was one their Lordships would ultimately pass, he would merely move that the Bill he read a second time.
§ Moved, "That the Bill be now read 2a."
§ LORD LYNDHURSTsaid, no reasonable person could object to the Bill. It was the result of many months of labour on the part of persons very deeply informed upon the subject, and who had done everything in their power to render the Bill as perfect as possible. He did not rise to object to the Bill being read a second time, because every objection he had was to matters of detail, which could be considered in Committee. But there was one circumstance which he wished to present, which had always pressed upon his mind, and to which he had never been able to discover any satisfactory answer. The County Courts had now been established for several years, and their jurisdiction had been extended so far as 50l. He understood that upwards of 5,000 causes of between 20l. and 50l. had been tried or decided within the last five months, which was at the rate of 12,000 per annum; and he was informed in every quarter that the decisions of these Courts had given entire satisfaction. Now, he could not understand why, if these Courts had jurisdiction in certain cases up to 50l., and their machinery was found adequate to the administration of justice therein, there should not be in the Superior Courts of Law, with reference to the same classes of cases, the same simple machinery adopted (presided over by the fifteen Judges), within a certain limit at least, say to the extent of 200l. or 300l. If the machinery now adopted in the County Courts were good for causes of 50l., he could not see why the same system could not be adopted for causes of greater value of the same class.
LORD BROUGHAMagreed that the Bill should be read a second time, and 243 then discuss the details in Committee—although he anticipated objections to it of three classes: that it did not go far enough; that it went too far; and that it went in the wrong direction. His own objection to it was rather of the former character, that it did not go far enough; though he admitted that, so far as it went, it was in the right direction. These objections, however, as his noble and learned Friend had observed, should be considered in Committee. He concurred with his noble and learned Friend as to the excellent working of the County Courts system, and as to the propriety of extending their jurisdiction.
§ LORD LYNDHURSTexplained that he did not say anything about their jurisdiction; but he had suggested that if their machinery was deemed adequate to causes of a certain description, the same machinery might be applied in the Superior Courts, under the presiding care of the Judges, to cases of a similar character, though of a larger amount.
LORD BROUGHAMadmitted that he had misunderstood what fell from his noble and learned Friend. He thought that if the suggestion of his noble and learned Friend were adopted, it would be of benefit both to the suitors and to the Courts of Common Law. This was a time when large and liberal amendments of the law were expected by the country, and ought to be granted. His Lordship then proceeded to read to the House an extract from a letter which he had just received from his noble and learned Friend Lord Denman, on the subject of the Bill of which he and the Lord Chancellor had spoken the other night. His noble Friend said—
The present crisis could not fail to excite considerations of the highest importance. There is every appearance of an attempt to establish order on the basis of absolute power, and to teach mankind the lesson that the will of one man may be safely intrusted with the interests of all. But, if there be any truth in moral reasoning or long experience, it is clear that, without the basis of law, no solid fabric of order can be reared, nor can any security be given for the rights which even the best men and the best designed decrees may intend to confer. It appears to be the peculiar vocation of England to exhibit to the nations of the world a steady Government, and a peaceful, because contented, people, and that content must not be looked for (since it cannot and ought not to exist), where a press is free, and the people moderately enlightened, while a single grievance is wilfully maintained after exposure.
The LORD CHANCELLORwas not 244 exactly aware what the course of procedure in the County Courts was after the "declaration" or "plaint." If his noble and learned Friend was acquainted with it, and was prepared to recommend to the House to adopt it as a course of proceeding for the Superior Courts, his recommendation would go a great way with the public and the profession; but as at present advised, he (the Lord Chancellor) thought that the course of procedure laid down by the Bill was essential to the due administration of justice, and fitted to the nature of the litigation which took place in the important commercial and trading interests of the country; and he did not believe that the procedure of the County Courts was properly applicable to the suits in the Superior Courts. He should be glad, however, that the public should have the assurance of his noble and learned Friend's judgment as to whether or not he thought that the County Court course of proceeding was fitted to be adopted for administration of all suits; but until he heard from his noble and learned Friend the deliberate declaration of his judgment to that effect, he should not believe that his noble and learned Friend really entertained any such opinion.
§ On Question, agreed to. Bill read 2a accordingly.