HL Deb 25 July 1889 vol 338 cc1236-9

House again in Committee (on Recommitment) (according to order).

LORD FITZGERALD

said, on the question of the County Court Judges granting an appeal, he would confine the proposed Amendment to inserting after the word "vexatious" the words "or unreasonable."

LORD HERSCHELL

My Lords, on this Question, that the words "or unreasonable" stand part of the Clause, I shall not trouble your Lordships by repeating at any length what I said on the previous occasion. I still adhere to my view, that it is objectionable to leave the question of appeal open whether it is reasonable or not. My Lords, I strongly object to appeals being allowed in those cases. My noble and learned Friend seems to assume that the case will necessarily go by way of appeal to the Judge of Assize. I think the power to state a case on a point of law will not cause additional expense; but I believe that putting in these words, instead of saving expense to the parties will put them to expense. However, as the noble Viscount opposite voted against me on the matter when it came to a Division, I do not feel that there would be much hope for it if a Division were again taken, and, therefore, I will not trouble your Lordships with it further.

Amendment (by leave of the House) withdrawn.

LORD FITZGERALD

said, upon the Question whether Clause 9 should stand part of the Bill he wished to add the words, "and that no such appeal shall have the effect of staying further proceedings unless the Judge shall direct." He supposed there could be no objection to that.

LORD HERSCHELL

My Lords, I am1 not quite sure that I follow this Amendment. I had understood it to mean that execution shall not be stayed; bit surely execution is a stay of further proceedings. One mode of staying further proceedings is to obtain execution, and of course execution would go at once unless the Judge saw reason to the contrary.

Amendment, by leave, withdrawn.

LORD FITZGERALD

said, he objected to Clause 13, because under it litigants would be able to carry on appeals to any extent they pleased. For the assistance of the House he would state that he had received a letter on the subject pointing out that the clause had evidently been taken from 14 and 15 Vict. cap. 57, sec. 138, providing that any person who shall think himself aggrieved by the decree of the Court, and who does not appear by an attorney at the hearing, may obtain a re hearing, upon depositing the money and entering into a bond. Thereupon an appeal was given to the next going Judge of Assize. So that provision was thereby made for payment of the money into Court. In place of moving the omission of the section he would propose only to modify it.

EARL CADOGAN

My Lords, I agree that it is not right that the leave to appeal should remain open for an unlimited time. I should, therefore, ask the noble and learned Lord to withdraw his Amendment and to move another limiting to some extent the time within which the appeal can be made.

LORD HERSCHELL

I should like to explain to your Lordships the circumstances under which this clause came into the Bill. It was not in the Bill as originally introduced in the other House. It had its origin in a suggestion of the Bar Committee after the Bill had been framed as it was proposed to be carried. Attention was called to the fact (of which there can be no doubt) that the 127th section of the Act of 1857 was repealed by the ninth section of the Act of 1882. It was stated before the Bar Committee by a learned gentleman who was formerly in the House of Commons and who had taken part in the Bill of 1882, that that section had been omitted per incuriam, and he was the person who proposed its insertion in the Bill now before your Lordships' House. It is a very necessary section. Suppose a person receives a County Court summons for a debt; he goes to the place and says, "What do you mean by this? I have paid the money?" But, notwithstanding that, the proceedings go on behind the man's back, a decree is obtained, he, of course, having paid no further attention to the matter, and execution can be enforced against him. There are no means by which under the existing law he can obtain a remedy. My Lords, that is sufficient to show that such a clause as this is necessary. Therefore, I propose at line 51, after the word "appeal," to insert the words "to the next going judge of assize."

* THE EARL OF MILLTOWN

I desire to call attention to one thing. As I gather, Clause 127 of the Act of 1887 provided for giving an appeal to persons who do not appear personally.

LORD HERSCHELL

No, it has just the same operation as this clause.

* THE EARL OF MILLTOWN

As I understand, Clause 4 excludes persons who do not appear by counsel or attorney.

LORD HEESOHELL

It refers to persons who consider themselves aggrieved and who do not appear by counsel or attorney.

THE LORD CHANCELLOR

There may be cases in which the defendant never heard of the proceedings until execution issued. This Bill contemplates, no doubt, the case of a person who by his own fault did not appear by counsel or attorney, but if he himself appeared he would not be within this clause. My noble Friend seems to be under a misapprehension as to what the clause means. If any person was inops concilii and did not know how to appeal, this clause would not enable him to do so.

LORD HEESCHELL

It only affects persons appearing by counsel or attorney.

THE LORD CHANCELLOR

But it is consistent with the fact that he might have appeared himself, and if he did there is no appeal.

LORD HERSCHELL

If he appeared himself he would come within the section.

EARL CADOGAN

What I under-stand my noble Friend to mean is that the section only applies where the defendant was not represented by a solicitor or counsel, whereas it ought to apply to cases where the defendant did not appear himself.

THE LORD CHANOELLOE

Yes.

LORD EITZGERALD

The clause was only introduced in the House of Commons at the last moment. It was introduced on the night of the 30th of June, and the Bill was read a third time the next day. There was no time to consider it, and I have not been able to find out who proposed the Amendment. It does not appear on the records of Parliament. Originally the appeal was given where the party did not appear by attorney. That was the whole thing.

Amendment agreed to.

Report to be received on Monday.