COMMON LAW PROCEDURE AMENDMENT BILL. (Hansard, 27 May 1852)

LORD TRURO
The Bill which I present for your Lordships' adoption proposes an entire change in every step of a Common Law suit; from the first process, calling upon the defendant to appear, to the process by which the plaintiff is to obtain the fruits of a judgment in his favour. Simplicity in form, economy in expense, and expedition in decision, are the great objects which the Bill is designed to accomplish. That the Bill will attain those advantages in the greatest possible degree, I do not expect; but I solicit your Lordships' adoption of it, with the most confident expectation that the ends proposed will result from its becoming the law in as great a degree, and with as much certainty, as ever followed any remedial Bill passed by Parliament. That confidence is warranted by the circumstances which have attended its preparation. The evils which it is prepared to remedy were obvious and certain; the individuals who undertook the task of amendment were learned, cautious, and experienced men. The measure has been framed with the greatest deliberation and care, and with all the aids which the intelligence and knowledge of the Bench of Judges and of the profession at large could lend. Your Lordships are aware that Her Majesty was advised to issue a Commission to six gentleman to inquire and ascertain whether any, and what, alterations and amendments could be made for the better administration of justice in the process, practice, and system of pleading in the Superior Courts of Common Law at Westminster. The gentlemen who were appointed to discharge the onerous and important duty imposed by the Commission, patriotically undertook that duty gratuitously, and, at great personal labour and sacrifice, most efficiently performed it. I shall not detain your Lordships by stating the course and substance of their Report, as I presented it to your Lordships' notice when I brought in the Bill. It is enough, upon the present occasion, to say that it gave a succinct account of the whole course of procedure in a Common Law suit, pointing to the object, the merits, and the defects of each step. After their Report was published, full opportunity was afforded for the consideration of it by the profession, and numerous suggestions were received from va- 1177 rious quarters; and after full consideration of all these suggestions, I engaged a gentleman of great talent, who has given the most indubitable pledge of his future eminence in his profession—Mr. Holland—to embody, in the form of a Bill, the result of the Report and the recommendations of the Commissioners, and of such suggestions as it was thought it would be expedient to adopt; and one of the most eminent of the Commissioners kindly and public-spiritedly lent his valuable aid from time to time during the preparation of the Bill; I mean Mr. Willes, a gentleman second to no man in the profession in talent and learning. After the Bill was prepared, I submitted it to the consideration of the Judges, of whose anxiety to improve the law, and to render it as practically perfect as possible, they have given constant and abundant proof; and their valuable suggestions have largely contributed to the efficiency of the present Bill. The Bill was afterwards widely circulated, and, since it has been upon the table, it has received the most considerate attention of the noble and learned Lords who are Members of your Lordships' House, in communication with the Judges and some of the Commissioners; and, since those communications, it has been minutely discussed, clause by clause, in the Select Committee to which your Lordships referred the Bill. It is under these circumstances that the Bill is now presented to your Lordships for the third reading. My Lords, since the time of Edward I., the course of procedure in the Common Law has never had the like revision or consideration. When writing of that illustrious reign, Sir Matthew Hale said— The law quasi per saltum obtained a very great perfection. Pleadings were short, eminently good, and perspicuous. The short and pithy pleadings and judgments did far better to render the sense of the business and the reasons thereof, than those, long, intricate, perplexed, and formal pleadings that oftentimes of late are unnecessarily used. That evil of which Sir Matthew Hale complained has increased as time has progressed; and the object of this Bill is to restore that ancient state of pleading and procedure which Sir Matthew Hale eulogises, and ascribes to the period I have mentioned. And I repeat that the object of every alteration that has been made in the course of procedure, has been to make the progress of a suit as short, economical, and simple as is compatible with the safe and satisfactory administration of justice, 1178 and dispensing with as much of form as that course of justice will admit. Important and beneficial as this Bill will undoubtedly prove, much yet remains to be done to further the general object; but experience alone will dictate by what course that can be done; and in order to secure to the public as early as possible the benefit of that experience, power is reserved to the learned Judges, under due and cautious restrictions, to apply their improved knowledge to remedy the imperfections and supply the defects that may be discovered in the practical working of the measure. I have now only to pray of your Lordships to bestow this great boon upon the country, and, by so doing, entitle the House to the most grateful thanks of the country. My Lords, I regret to have occasion to express my surprise that a difficulty should have occurred at the Treasury in regard to the payment of the fee of 200 guineas which I had assigned to Mr. Holland for the preparation of the Bill. A fee so small, that it would have been an insult to have offered it to any gentleman in the name of compensation for the application of the talent, time, and labour which this Bill demanded, had been named before the nature of this proposed Bill had been ascertained; and, I presume from mistake, objection has been made in some quarters to pay more than that small fee. I shall at all events see that the fee I assigned is paid; but I cannot believe that any demur will be made at the Treasury when the circumstances are understood. After the Bill shall have been read a third time, I shall move the insertion of an additional clause under the following circumstances. It appears that in the County Courts, when a warrant is issued to levy execution on the goods of a defendant, or, in case of there being no goods, to imprison him for a certain number of days, according to the amount of his debt, it is required to be executed by the officer of the District Court within which the plaint has been brought; but in case the defendant removes out of that jurisdiction, the warrant cannot be executed. This difficulty is supposed to arise from some inadvertency in the preparation of the late Act which extended the jurisdiction of the County Courts from 20l. to 50l. I have prepared a clause to remedy this supposed defect, by which it is proposed to enact, that on the verification of the warrants by the County Courts, the Judges of the Superior Courts may authorise execution of the process in the county 1179 or district into which the defendant may-have removed, subject, however, to the same fees only which are exacted by the County Court.

§ LORD DENMAN
said, that he was exceedingly happy to bear his humble testimony to the truth of his noble and learned Friend's statements with respect both to the merits of this measure and of the Commissioners by whom it had been prepared; the latter were men of the highest ability, and they had performed the duties entrusted to them in a manner most creditable to themselves, and most advantageous to the country. He thought, however, that the Select Committee of their Lordships' House to which this Bill was referred, and of which his noble and learned Friend (Lord Truro) was the Chairman, should also have received some portion of his praise, for they had certainly improved the Bill most materially by their Amendments. He was convinced that he should be doing a great public evil if he were to introduce into the Bill anything which might produce delay in the passing of it; he trusted, however, that the same feeling which induced him to make that declaration, would induce others elsewhere to withdraw all frivolous or mere technical objections to this measure, and that the measure would become the law of the land with the least possible delay. He would, however, suggest one or two Amendments. One was with regard to the proceedings in actions of trover. Here, although the real grievance was that the plaintiff had been wrongfully deprived of his own goods, he was obliged to allege a wrongful conversion of them upon the part of the defendant; and questions often arose as to whether there had been a conversion. He proposed, therefore, in cases of this kind, to substitute an allegation that the defendant had "wrongfully deprived the plaintiff of the use and possession of his goods," for the one that he had "wrongfully converted" them. The Commissioners had also recommended the abolition of the forms of actions, and that there should be one definite form under which all claims of compensation for wrong suffered, should be tried. He (Lord Denman) thought this a most desirable reform. He did not propose any Amendments, however, with the view of delaying the measure, but merely that they might be on record when the time came (as come it must) to propose Amend- 1180 ments in a Bill of so extensive a character as the present.

LORD CAMPBELL
said, he felt assured that the approbation expressed by his noble and learned Friend would facilitate its progress through the other House of Parliament. The Bill, probably, was not a piece of absolute perfection; but it would effect vast improvements in our civil procedure. It certainly left room for further improvement, and he heartily concurred with his noble and learned Friend in the Amendment of which he had given notice; and he thought it would be a great improvement to proceed by way of claim and answer in the action of ejectment.

The EARL of WICKLOW
complained that the operation of this Bill was limited to England, and was not extended to Ireland, although the Common Law was the same in both countries. He thought it was unjust to adopt the laws for the improvement of the practice in one country, and not in the other, when the law had been previously common to both; and he hoped that a Bill would be introduced to extend the improvements contained in this Act to Ireland.

§ The EARL of CARLISLE
said, that a Bill was passed two Sessions ago for the amendment of the Common Law procedure in Ireland; and this was supposed to have anticipated many of the advantages which were now hoped to be derived in England from the Bill before the House.

§ LORD CRANWORTH
said, that it was quite impossible to pass a Bill such as this, which should, in all its integrity, apply to both countries; for though, as a general proposition, it was true that the Common Law of both countries was the same, still if they had sought to extend a measure such as this, containing 300 clauses, and being, in fact, an absolute code, to Ireland, there would have arisen a necessity for so many exemptions, and for so much special legislation, that he thought the wiser course had been taken in applying it first to this country. If the Bill was found, as he trusted and believed it would be, to work admirably here, it would then be easy to adopt it, with such modifications as might be required, in the neighbouring country. In the meantime the neighbouring country might console themselves with the reflection, Experimentum fiat in corpore vili.

The LORD CHANCELLOR
said, that no one could be more anxious than he that 1181 the law should be made the same in both England and Ireland; but he thought the wisest course had been taken in not at once applying this Bill to Ireland. He might just mention that the Lord Chancellor of Ireland was anxious to introduce a Bill during the present Session for the improvement of the practice of the Court of Chancery in Ireland; but he had postponed it at his (the Lord Chancellor's) request, as he had pointed out that it was desirable that the same rules should prevail in both countries, and that it was, therefore, better that the Bills now before Parliament for the reform of the Court of Chaneery in England should be passed first (as no doubt they would be), and that then their operation should be extended to Ireland.