VICE-CHANCELLOR'S COURT.

HC Deb 26 June 1822 vol 7 cc1374-81

M. A. Taylor

said, he was encouraged, in bringing this important subject under the view of the House, by the, result of a similar proposition of his in the last session, which had been negatived by only four votes. He trusted that on the present occasion, the House would agree with him in believing there was something fundamentally wrong in the system of the Court of Chancery and the appellant jurisdiction, as far as regarded the expence and delay to which suitors were subjected. The consequence was, that those in affluent circumstances alone could stand the expence, while those who had not opulent resources were seriously injured or altogether ruined. The delay also was grinding and oppressive indeed, the oppression to which matters of equity were liable, was enough to exhaust any moderate patience, and destroy any moderate fortune! He might be asked, why when the evils were so great, there were not numerous petitions before the House to that effect; and why he was the only person who came forward on the subject? To the latter question he would state, he did not stand alone; for, in 1811, he had carried his motion for an inquiry; and as to the former, he could say, than whatever were the complaints made by suitors and their solicitors, he found it very difficult to persuade them to come forward; and state to that House their grievances. He had received various information relative to this question, some of which he would briefly mention. He then stated an instance of a writ of error in the Court of Chancery, which was instituted in 1814, and was still on the paper. It arose out of a decree pronounced by the Master of the Rolls in 1812. He could not say whether judgment had been yet pronounced. He could, it necessary, state from twenty to forty instances of a similar kind. There was one instance in particular, in which there was a property of 28 shares, each share being worth 1,200l.: after twelve years, the property was sold under a decree, ordering the shares to be equally divided. A person whom he knew, held one of the shares, and expected 1,200l.; but his costs came to 750l. so that there came into his pockets out of this property but 450l. There were other cases of a like nature, which as strongly affected the character of the appellant jurisdiction, as to the excessive expence and delay attendant on its proceedings. He did not state these matters with the intention of disputing the purity of the Court, but to show the necessity of reforming the system. All his aim was to put the House in possession of the facts, that they might judge whether he was right or wrong in the view which he took of the subject. His only aim was to replace the two courts on the footing upon which they originally stood; that they might again discharge their high functions in the way they ought; and not, as he asserted they had for the last few years done, increase the miseries of litigation by occasioning delay and expence without limit. After the reports of the two committees of the House of Commons, in 1811 and 1812, the abuses in the courts of equity became so apparent, that the House of Lords appointed a committee, who made a report upon it. Out of that report arose the bill for creating the vice chancellor's court. That bill was strenuously opposed, by the greatest characters in the House of Commons. In particular, to induce the House to reject. It ever there was an authority on the highest points of equity, to which he would refer in preference to any other, it would be that illustrious individual, whom he would not hesitate to compare to lord Nottingham, or lord Hardwicke. That great person clearly foretold all the evils that had since happened. The present vice chancellor himself opposed every part of the bill. A right hon. gentleman opposite also decidedly opposed the bill.—However, the bill passed the House, in an evil hour; for from the passing of that bill he dated the extinction of the right of the suitor to the material privilege of having his cause heard before the great seal. In very few instances before that period had causes been set down before the Master of the Rolls: but so different was the case after the passing of the bill, that the late Master of the rolls (sir W. Grant) had told him be had retired from office, because that bill had broken his back. The principal duty of the great seal was to administer justice to suitors in the court of Chancery as quickly as possible. What would lord Nottingham or lord Hardwicke say if they saw that suitors could scarcely approach the great seal but by the intervention of the vice chancellor's court, its deputy, and that they were thus exposed to a double expence, and a three-fold delay? No one could be more sensible of the many excellent qualities of the eminent individual who presided in the court of Chancery; by, somehow or foreign or domestic policy was agitating in the cabinet, the lord chancellor could never be easy in that court, but shut up his note-book and went to Carlton House. In fact, the lord chancellor was more a statesman than he ought to be, as his proper sphere was in the court of Chancery. The hon. gentleman here quoted a passage from a pamphlet of sir S. Romilly's, predicting the evils which had ensued from the bill for establishing the vice-chancellor's court. In the last eight years and a half the lord chancellor had not had an opportunity of hearing more than 53 causes; while the vice-chancellor had in that time heard 2,328. Was that the way in which chancery business ought to be done? No doubt the lord chancellor had been fully occupied otherwise; but would any lawyer deny that the lord chancellor's proper place was the court of Chancery? In the last eight years the lord chancellor had heard 157 appeals from the other courts of equity. There were now about 119 to hear; so that, calculating at the rate at which those appeals had hitherto been beard, it would take four years to get through them. So that the appellant, after having gone through all the horrors of the vice-chancellor's, or the master of the rolls' court, must still wait four years before his case could be finally determined! Was that a situation in which a suitor ought to be placed? Could parliament satisfy their consciences if they took no step to remedy the evil? Now, with respect to motions, during the last eight years the lord chancellor had heard 5,155 motions. During the same period the vice-chancellor had heard 14,560,—not motions of course, but actual motions. Many of the motions heard by the lord chancellor were appeals from the vice-chancellor's court, a circumstance which sir S. Romilly had distinctly predicted. The same was the case with exceptions and petitions. When, some years ago, he (Mr. T.) proposed to separate the bankrupt business from the other labours of the lord chancellor, of which it formed a large portion, the learned lord would not hear of such a thing. It now, however, appeared, that the vice-chancellor did a great deal of that business. In every point of view, the existing system was an evil which ought to be cured. No one knew how soon he might be dragged through all the horrors of this equity ordeal, which nevertheless he had heard gentlemen, with stoical apathy, call "the merciful court of Chancery." He was very desirous that a regular statement should be made to parliament of the business done by the lord chancellor and his deputy, distinguishing the number of appeals heard by the former.—He would proceed to the consideration of the appellant jurisdiction of the House of Lords, which, to his great surprise, appeared in the discussions on the bill for creating a vice-chancellor's court to be of more importance than the privileges of the suitors in the Court of Chancery. The hon. gentleman here read the preamble of the bill, to show that to give facilities to that jurisdiction was its principal object. Had the result been satisfactory even in that respect? At first, as all new brooms swept clean, a great deal of work was dispatched in the, House of Lords, where there was at the passing of the bill in question an arrear of appeals for 11 years. In the first year after the bill, 60 appeals were decided; in the next year 82; in the next 54; in the next 43; in the next 35; in the next 27; in the next 41; in the next 22; and in the next 46. On the 10th of May, 1822, there remained to be beard of appeals already appointed 122, and of others 33; making a total of 155. On the average dispatch of business of the last nine years, it would take four years-to get through those 155 appeals. Was that the state in which the appellant suitor, after all be must previously have undergone in other courts, ought to be left? Could any one say that that was not a striking grievance? One great object of the bill for establishing the vice-chancellor's court had been, to hasten the decision of appeals in the House of Lords; and yet it was now acknowledged, even by the learned lord himself, that unless some plan were adopted for getting rid of the Scotch appeals he could not go on. He (Mr. T.) now expected that it would-be proposed to constitute some intermediate tribunal to hear the appeals from Scotland—a measure which was recommended by some of the judges several years ago, but which dropped to the ground. It was not his wish that the vice-chancellor's court should be destined at once, for he was desirous that should be afforded to parliament and to his majesty's government, to consider what, it would be advisable to substitute. He would ask gentlemen whether the debt due by those courts to the suitors was truly paid and satisfied? But he was convinced the House would not suffer the subjects of this country to be left in so perilous and distressing a situation. He had been indulged in a variety of conversations with the lord chancellor upon the subject; and had entertained hopes that that noble personage himself, seeing the evil, would have originated some measure as a remedy. In that expectation, however, he had been disappointed. The noble and learned lord spoke of his intention to resign the seals, and said, that he thought it would be more delicate to leave alteration to his successor. He (Mr. T.) did not agree in that feeling, nor in any feeling which was to prolong, even for a day, the existing system. He would therefore move, "That this House will resolve itself into a committee of the whole House, to consider of the act of the 53rd Geo. 3, c. 24." It was his intention to propose, if he obtained the; committee, the abolition of the vice-chancellor's court, after a period of two; years.

The Attorney General

said, he was something surprised at the conclusion of the hon. member. Why had he not moved at Once to repeal the act? Why lose his time in taking a committee, when the house had already before it all the materials necessary to its decision? The exertions; of the lord chancellor were too universally acknowledged, to require any description. The learned lord sat from October in one year, to September in another; and often gave up holidays to the despatch of any pressing business. A little attention to the returns before the House would show that, except as to appeals, there was no material arrear of business before the chancellor. The hon. member had cited an instance of an amicable suit which had lasted 12 years. Now, he would put it to any gentleman conversant with chancery practice, whether such a suit, unless under peculiar circumstances, could endure for 12 years. Since the vice-chancellor's court had been established, the lord chancellor had been a good deal occupied in the hearing of appeals: but that must inevitably happen where the power of appeal existed, and where parties were not satisfied. In estimating the quantity of business got through by the lord chancellor, the House ought to look at the number of motions taken before that learned judge. Each motion, in many cases, amounted to the hearing of a cause. Appeals, very frequently, were taken in the share of mo- tions. A cause having been decided by the vice-chancellor, or the master of the rolls, the lord chancellor was moved to stay proceedings under the decree, and upon that motion the whole question of appeal was gone into. To compare the business of the lord chancellor with that of the other judges of the court was not fair, because his lordship was occupied during the session of parliament three days a week in hearing appeals. Besides, the cases which came before him were generally of the first importance, and such as were litigated with the greatest anxiety and pertinacity. Those which went before the vice-chancellor and the master of the rolls were comparatively slight. But, to look at the business actually got through by the lord chancellor:—In 1821, he had heard 8 causes, 6 exceptions, 5 pleas and demurrers, 57 petitions, 103 bankrupt petitions, 245 lunatic petitions, and 418 motions. In 1821, then, the lord chancellor had disposed of 890 different matters. In 1820 he had got through 1,015. In 1819, there were 1,011. The hon. member had said, that the establishment of the vice-chancellor's court had not tended to the dispatch of business, in the House of Lords. In the ten years running from 1803 to 1813, the lord chancellor-had disposed of 193 appeals. Between the year 1813 and the present time, no fewer than 421 appeals had been disposed of; and the advantage of enabling the lord chancellor to proceed with the appeals was prodigious; for many of them were brought merely for the purpose of delay, and consequently disappeared the moment they were pressed upon. He admitted that the appeals (chiefly from Scotland) poured in very fast; and, in fact, the very good of decision brought some evil along with it; as the delay formerly attendant upon appeals had deterred many persons from bringing them, so parties were now encouraged to prosecute them from the expedition with which they were arranged. The whole number of appeals unheard amounted to 101; and in no other branch of chancery business did there remain any arrear worth naming, He would put it to the House, therefore; whether the hon. member had made out: any case to call for the measure he hack proposed.

Mr. John Williams

said, that with respect to the dispatch of business in the court of the learned lord, he was com- pelled to dissent from the attorney general altogether. For the last 9 years, the bankrupt petitions heard by the vice-chancellor had been, as compared with those of the lord chancellor, at least two to one. This excess of business in the vice-chancellor's court, led, of necessity, to the multiplication of appeals.

Mr. Twiss

said, that all the arguments now advanced against the vice-chancellor's bill had been anticipated at the time when that bill was first brought forward, but which were not then considered powerful enough to prevent the House from adopting it. Since the erection of the vice-chancellor's court, the entire number of matters disposed of by the lord chancellor was 11,320, by the vice-chancellor 17,881. The appointment of the vice-chancellor's court had reduced the arrear of causes less than one half. He therefore saw no reason for carrying this restless activity of change, so much the rage of the day, into the highest court of law in the realm. In a great judge they were not merely to look at the number of causes dismissed within a year, but to the effect of his judgments in the way of precedent. He would venture to say, that when the decisions of the present lord chancellor should be consulted by future lawyers, they would be looked up to as monuments of legal excellence.

Mr. M. A. Taylor

said, that what he had stated remained unanswered, and he would, year after year, take the sense of the House upon the subject, if he should divide but two.

The House divided: Ayes, 51; Noes, 108.