COURT OF CHANCERY—ADJOURNED DEBATE.

HC Deb 20 December 1830 vol 1 cc1399-424

The Order of the Day for resuming the Adjourned Debate on this subject having been read,

Mr. M. A. Taylor

addressed the House. He said, that his learned friend (Sir E. B. Sugden) below him, seemed to think that he (Sir E. Sugden) had stood forward the other night, for the first time, as the first exposer of the abuses of the Court of Chancery. His learned friend, however, was, he would himself admit, in error upon that point, and there was no exposure which his learned friend had put forward which, together with a great many more, had not been over and over again pressed upon the consideration of the House, by himself, as well as by many other Members; or to which the attention of the commission appointed to inquire into the Court had not been forcibly drawn. Besides, he could not help remarking, that during the time his learned friend and the late Lord Chancellor had been in office, notwithstanding all they had advanced upon the evils, no one practical benefit had been extended to the suitors of the Court. His learned friend had stated, that motions on this subject had been opposed on political grounds. This was quite true; he could confirm it by his own experience; for, when he brought forward a motion on the subject, while Lord Eldon held the Great Seal, he was opposed by the then Government,—and why? Because Lord Eldon threatened to resign if his motion were agreed to, and had added, that he would admit of no reforms into his Court. His authority, on this occasion, was the best, —for it was Lord Eldon's authority. That noble Lord himself told him the fact. He had brought forward a motion in 1810, and all those subsequent to that period, were defeated on similar grounds. At last the Chancery Commission issued. That commission, after sitting two years, made a report, and Lord Lyndhurst, then Attorney-general, opened the proposed alterations, and gave notice of a bill for that purpose. That bill, however, was never brought forward. At a subsequent period, Lord Lyndhurst did offer his bill. This was in 1827, he believed, but the bill so introduced did not embrace half the objects which the commissioners had in view, and which Lord Lyndhurst had alluded to in the plan of reform which he had opened to the House in 1826. Owing to some differences which arose between Mr. Canning and Lord Lyndhurst, and which had their origin in a speech upon the Catholic Question, Lord Lyndhurst refused to go on with the measure, and it fell to the ground. In 1828 he (Mr. Taylor) called upon the Ministers to take some step; still nothing was done. In 1829 a bill was moved for in the House of Lords by Lord Lyndhurst: it passed that House, and came down to the Commons; but the Ministers did not press it, and the then Secretary of State for the Home Department stated, that as it had come down so late it was impossible to carry it through the House in that Session. In the last Session another bill was introduced in the same way; but that also ended in nothing. From this history of what had been done, or rather what had not been done, during the space of twenty years, the House, he was sure, must see, that unless a committee was appointed of a different complexion, or unless the Chancellor himself would take the matter into his own hands, the abuses complained of never would be redressed. The Chancellor could do much. The Chancellor, for instance, was competent to carry into execution nine-tenths of what his learned friend proposed should be done. It was said, that the Rolls might be made a more efficient Court. He had no doubt it might be: but see how the matter stood now. At the present moment, the Master of the Rolls had not a single cause before him, while the Vice-Chancellor laboured under the pressure of upwards of 200 causes. The Master of the Rolls had offered,—and he felt that he should be acting most unjustly by the Master of the Rolls if he omitted to state the fact, and to add, that the Master of the Rolls was one of the ablest Judges who ever presided in a Court of Equity—the Master of the Rolls had offered, if the Bar and the parties would consent, to divide these causes with the Vice-Chancellor, and hear one half of them himself. The root of the evil, was not, however, limited to the hearing alone; it was to be found in the absurd length of the pleadings in the Masters' offices and in the Six Clerks' office. His learned friend (Sir E. B. Sugden) had adverted to a plan the other night, of putting the Six Clerks' office upon a different footing: but this would be only perpetuating an intolerable abuse. The Six Clerks' office ought to be abolished altogether, on account of its inutility and its expense; for instance, to take a bill off the file here, costs 60l. or 70l. and was often ruinous to the suitors. His learned friend objected to separating the jurisdiction in bankruptcy from the Great Seal. He (Mr. Taylor), however, was of opinion, that the bankruptcy business ought to be severed from the jurisdiction of the Great Seal; but if it were still to be kept attached to it, at all events, the grinding and oppressive fees connected with it, and which bore with such severity upon the unfortunate suitors, should be removed. He was further of opinion, that the numerous patent places connected with this establishment ought to be abolished. A commission should be opened by affidavit, and not by patent, and every thing possible ought to be done to reserve the property of a debtor for his creditors. Good God was it to be borne, that when men had lost so much by misfortunes in trade; when those who had trusted and those who had been trusted were alike suffering,—was it to be borne, that the law should diminish the little remnant left, and plunge those who were so situated into beggary and ruin. While he was on this subject, he would advert to Mr. Vizard, whose appointment had been called in question, but which to him was a source of great satisfaction. He believed that that gentleman understood the business of bankruptcy, and was capable, both of effecting improvements in that department, and of suggesting to the Legislature what improvements ought to be looked to. For many reasons, he was opposed to the system of having political Chancellors. Amongst other evils, the political character of a Lord Chancellor, and the avocations consequent upon it, prevented his regular attendance in his Court. The Chancellor should be only a Judge of Appeal in the House of Lords. With regard to the manifest and enormous abuses which had so long prevailed in the Court of Chancery, he must say, that Lord Eldon might have removed and remedied many of them. Lord Lyndhurst should have reformed them, according to his own suggestions, but he failed. Lord Eldon presided in that Court for upwards of twenty years, with that vicious system in existence, and not a single beneficial alteration was effected by him. If those who had presided there had been unwilling to reform the abuses existing in that Court, it was the duty of the executive government to have pressed the important matter upon them, or to find some Lord Chancellor who had the will and ability to effect the remedy. He had long endeavoured to attract the attention of the Legislature to it, and his patience had been nearly exhausted with the numerous and various complaints which had reached him from many quarters, with regard to the evils produced by the abuses in the Court of Chancery. He had, during the course of some years, received an immense number of letters from different persons who had suffered from those abuses, soliciting him to bring their cases before Parliament for the purpose of obtaining redress; and from one individual, a lady residing near Bungay, he had lately received a communication, covering sixteen sides of letter-paper, filled with a detail of the wrongs which she had endured, owing to the existence of the present vicious system. If the House would but consider the misery and wretchedness which that Court had been the means of disseminating amongst thousands of families, they would see at once that, by reforming the system which existed there,—for he found fault, not with the Judge, but with the system, —they would confer the greatest benefit that Parliament could possibly confer upon the country. There had been, from time to time, much eloquence exhausted on this great question, but as yet not a single act of real reform had been effected. He was confident, looking to the past career of the noble and learned Lord who now presided over that Court, that he would not let the present Session of Parliament pass over without trying whether, by his own individual efforts, he might not be able to work the work of reformation; and that, if he found himself, by his own individual authority and power, unable to effect that good, he would come to Parliament for its assistance towards applying a fit remedy to such monstrous and crying evils. With regard to patent places in the Court of Chancery, if no other individual would take that matter in hand, he (Mr. M. A. Taylor) would certainly hereafter submit a motion to the House on the subject. Whoever might be Lord Chancellor, or whoever might be Minister, this he would say, that he would never abandon this question of reform in the Court of Chancery until he saw it carried. He concluded by again expressing his hopes, that the present Keeper of the Great Seal would bring his great and comprehensive mind to grapple with the important subject; and that, at no distant period, the manifold abuses in that Court would be completely removed; and, in that case, the public would no longer consider the Court as a curse, but regard it as a blessing, in its due administration of equitable relief.

Mr. J. Williams

said, his chief objection to the proceedings of that night, and the night before, was, that there was no specific motion before the House for the improvement of the Court of Chancery. If it were true, as stated by his hon. and learned friend, the member for Durham, and as also stated by his hon. and learned friend, the member for Weymouth, that speeches had had their day, and that acts were now required, he feared that no benefit whatever would arise from the present conversation, as there was nothing in view, and no distinct proposition before the House. Indeed, the conversation had one disadvantage attending it,—viz. where so much was said, it might be supposed that something would be done; and in this case such a supposition would end only in disappointment. He could not help expressing his regret, therefore, that his hon. and learned friend, the member for Weymouth, should have thought fit to take so discursive a course, and that he did not bring forward a specific measure, calculated to meet and remove some, even the most minute parts of those evils with which he appeared to be so fully impressed, and described so forcibly, and in so much detail. He was sure, had his hon. and learned friend introduced any specific measure, that it would have been fairly and candidly discussed, more particularly as his hon. and learned friend had stated, that he looked upon the reform of the abuses of the Court of Chancery in no respect as a measure of party; but would lend his powerful assistance to any one who should introduce any measure of probable relief; and if such a bill should be brought forward, he had no doubt, whoever introduced it would derive great benefit from the experience and superior knowledge of his hon. and learned friend. It was not his intention to follow his hon. and learned friend in his observations on the abuses in the Master's Office, arising from the length of the reports, or into any one of the many heads of the discourse he had pronounced. He declined doing so; not because, like his hon. and learned friend, the member for Durham, he would not allow the merit of novelty to the speech of his hon. and learned friend, the member for Weymouth, but because it was wanting in any distinct proposition. Treating the subject generally, in his opinion, the fundamental objection to the Court of Chancery was, the nature and extent of its jurisdiction. That should be diminished, and given to other Courts better constituted, from which it had been improperly filched. In his opinion, this would be the only effectual reform; and he had no doubt his hon. and learned friend, the member for Weymouth, would give his assistance in carrying it into effect. For his satisfaction, therefore, it might be mentioned, that the Chief Justice of the King's Bench, and the Common Law Commissioners, had adopted the principle of relieving the suitors of the Court of Chancery, by withdrawing them from that Court to other tribunals, where justice could be obtained in a more easy and compendious, and in a cheaper manner. [" Hear, hear," from Sir E. B. Sugden] His hon. and learned friend cheered him, and no wonder, for no one knew the abuses of the Court of Chancery better than he. He trusted, therefore, that he would agree to the propriety of restoring to the Courts of Common Law that part of the jurisdiction of the Court of Chancery, which should never have found its way to that Court. The Bill of Inter pleader, lately introduced, was one step in that direction; and his hon. and learned friend would probably recollect, that the Law Commissioners recommended that, in cases of injunction, the appeal should be made directly to a Common Law Court, instead of the Court of Chancery. He did not know what his hon. and learned friend would think of that, nor how he would bear it, that those very Commissioners dared, in their recommendations, even to tread on the sacred ground of legacies, which no man could have touched out of the Court of Chancery, as it was supposed, without sacrilege or something quite as bad. He had often found that the best, way to draw the attention of the House to any subject, was, to mention some particular case bearing on the point, not much perplexed with details. He would, therefore, take leave to mention a case which had come within his own knowledge, in order to show the blessed effects of the joint jurisdiction of Law and Equity—the one trespassing on the other, and the combination of which had been designated "the consummation of human wisdom." This was the expression of Lord Kenyon, who practised in one Court, where he got all his money, and was then placed at the head of another. No wonder, then, that he should say, that this joint operation of law and equity was the consummation of human wisdom. Let the House see, however, how they operated in the case to which he was about to allude. In that case a person named Graddon, who was born in the county of York, died after having made a fortune of about 4,000l. or 5,000l. real and personal. The deceased left the possession of a house, which he had in town, to a female relation. Shortly after his death, however, a near, though an obscure relation of the deceased's, a common labourer in the fields, started up as a claimant, and was supposed to be entitled to the whole of the property left by the deceased; to the personality of the deceased as next of kin, and to the realty as heir-at-law. The Solicitor to whom this man made application knew, that as there was both real and personal property, proceedings must be taken both at law and in equity. The first step, however, which he took was favourable to the character of that Solicitor, who resides in the north. He offered the defendant to take 300l. for his client's whole claim, but this offer was refused, and proceedings commenced. A bill was filed in the Court of Chancery, not to determine whether the claimant was entitled to the property, but to determine whether it was necessary for the Common Law Courts to entertain that question. Examinations were taken, and the proceedings in equity carried to a considerable extent, and of course at considerable expense, until at length there was an issue, from Chancery to a Court of Common Law, to try whether the plaintiff was the next of kin to the deceased; and this issue went down to York to be tried. This was the mode of proceeding necessarily resorted to on account of the personal property, the plaintiff having to resort to the Common Law Courts, by an action of ejectment, to recover possession of the freehold property. The issue tried, in which the plaintiff was proved to have been the next of kin, also demonstrated him to be the heir-at-law, and in this particular case entitled to the realty. The trial which took place in York, however, to try the question as to whether the plaintiff was next of kin, was not sufficient. The action of ejectment was to be tried in London. The freehold premises being situated in London, the venue was laid there, or more properly in Middlesex. To prove the case, however, it was necessary to bring up some aged witnesses who had been examined in York (some of them above eighty years of age). Those wit- nesses were not brought up, and the result was, the plaintiff was foiled. On the first action of ejectment, there was a verdict against him, though on the trial which took place shortly before at York, the fact of the plaintiff's being next of kin to the deceased was proved by evidence as plain as the light at noon day, and he actually recovered the personal property, on the ground of his being next of kin to this party dying in London. Before the plaintiff absolutely got possession of the personal property, however, there was another step—a motion made before the Master of the Rolls for a new trial. After being fully argued, that motion was refused with costs, still the plaintiff's right to the little freehold property remained to be tried. A second action of ejectment was brought to recover possession of this property. The witnesses were then brought up from York,—the same evidence to the very tittles which went to establish the plaintiff's being next of kin in York was also produced in London to establish the fact of his being heir-at-law, but this was done at an expense of not less than 400l. or 500l. After all this expense, however, there was no resistance. His hon. and learned friend, the member for Malton, (Sir James Scarlett) who is not in the habit of starting away when he can set up any defence for his client, on that occasion offered no defence; and Lord Tenterden, who tried it, observed that it was the clearest case he ever heard. There was a verdict, of course, for the plaintiff. To recover possession of this small property, however, there were three trials at Common Law, besides the proceedings in Equity. After all was over, the costs came to be taxed in the Court of Equity, and the plaintiff not being able to pay the bill, his person was taken in attachment for the costs. He had no means whatever of support, and was as he had been informed that very day, existing either by the lowest species of labour, or upon charity. When the proceedings commenced, the property of the deceased was in the possession of the woman to whom he had already referred, but as she was making away with it, an application was made to the Court of Equity to appoint a receiver. An order was made to this effect, but no actual appointment took place. Whilst matters were thus pending, the plaintiff's Solicitor received intimation that this woman was carrying off the property in the night-time, and he repaired to the house, not to take possession of the property, but merely to give orders that locks should be put on the doors, and measures of that kind adopted to prevent the property from being surreptitiously disposed of. Would the House believe it, however, in a country which assumes to be governed by the perfection of law, that for this interference on the part of the plaintiff's Solicitor, an action of trespass was brought against him, which action went through all the preparatory proceedings until it was brought to issue, and it would have been tried, but that the Master of the Rolls said, that out of common decency, and for the credit of the country, he felt called upon to interpose, and to stay the trial by a perpetual injunction. Of the 4,000l., however, which the plaintiff was entitled to recover upon the plainest proof, he never received one farthing; the woman who unjustly made the resistance to his claim, did not retain a farthing—all was spent in the joint expenses of Law and Equity. The defendant's Solicitors received about 2,000l.in the course of those offensive and defensive proceedings, which he would not then more properly characterize. The moral of this brief, and, he thought, instructive ease, was this, that if the Court of Chancery had kept its claws off, and the parties had only had to try the plaintiff's claim at Common Law, the issue to try who was the next of kin of the deceased, would also have decided who was the heir-at-law, and all the subsequent proceedings would have been saved. By no ingenuity within an undivided jurisdiction of either law or equity, could such an enormous expense have been incurred, as took place in this particular case, by "the consummation of human wisdom," the joint operation of law and equity. Bad as the Court of Equity is, and profligate as are the expenses of proceedings in it, yet, if it had had undivided jurisdiction in the case to which he had alluded, it would have been impossible that the expenses should have been so large. The Master of the Rolls was so struck with the clearness of the case, and so impressed with the justice of the plaintiff's claim, that he gave the plaintiff's Counsel a week to find out whether there was any precedent by which he might at once declare the plaintiff's rights to the freehold house, and prevent the expense of the actions of ejectment, which were tried at Common Law. No such precedent, however, could be found. He complained, then, of the joint operation of the two systems of law and equity. They were both at work at the same time; and when a party got into certain hands, so devoutly and charitably disposed, by the operation of this joint system, the persons, to whom he need not more particularly allude, had a power such as he had been endeavouring to exemplify, by tracing its results in one particular case. Charybdis is bad enough; but to be in Scylla and in Charybdis at the same time, surpassed all that he ever remembered to have heard of, either in ancient or modern history. Even the poets had invented nothing so cruel. With Common Law on one side, and Equity at the other, the 4,000l.—the whole property—went for the benefit, of whom the House might easily guess; and this upon a refusal to get rid of the whole of the claim, and, of course, the proceedings upon a payment of 300l. The offer was rejected, the property torn to pieces; and neither the party who injuriously resisted the fair claimant, nor the other, who had the fair claim, had ever received one farthing benefit. Whatever might be the antiquity or the authority of the system which tolerated such a nuisance, it ought to be put an end to by the unanimous condemnation of all mankind. It was a disgrace to this House and an injury to its dignity, to allow such a system to exist. As to the facts of the case, he entertained no doubt of their correctness, for many of them came within his own knowledge and observation. It was only by revising and recasting the more objectionable"' parts of both these systems, that any good could be effected, rather than by allowing the one and the other by their joint operations to tear the client to pieces. The great evil was, that men were placed under the joint administration of Law and Equity, and he should hail with sincere satisfaction any measures calculated to bring back to the Courts of Law that jurisdiction which they were robbed of in former times. He utterly despaired, indeed, of any large, comprehensive reform in the Court of Chancery. Reform must come step by step; it could not come from mere speeches; but by directing attention to manifest and obvious grievances. From that quarter he saw the light coming. He hoped that a change would be effected by the introduction of successive bills, by which the interference of the Court of Chancery would be diminished, and application made to other Courts which are more open, easy, and compendious, and that to them would be given what is conceived to be the jurisdiction of the Court of Equity. He gave no opinion on the various points introduced by his hon. and learned friend. Men did not remember what occurred in a conversation, where there was no definite point. Mention had been made by his hon. and learned friend, of the noble and learned Lord now at the head of the Court of Chancery. He was the last man to deny that every public Minister, and every man placed at the head of a Court, was the proper subject of public discussion and public observation. If, therefore, his hon. and learned friend, speaking manfully and fairly, as it is the undoubted privilege of every Member of Parliament to do, had merely commented on the fitness of that noble and learned Lord, there would have been no ground for complaint. But if it was intended by his hon. and learned friend to doubt the capacity of that noble and learned Lord for the situation which he now fills, he, who had sat side by side with that noble Lord for many years—for a greater time than it would be convenient for either to remember—would take leave to say, that those who had seen him only in this House, were unacquainted with his Herculean powers of labour and stupendous industry, which extended over a space of which few had any idea; and he had no doubt, if that noble and learned Lord were allowed to remain in his present position for only a reasonable time, either he would die under his exertions, or he would make himself a most accomplished magistrate to preside in that Court; and, as a mere lawyer is a poor sort of thing without other accomplishments, he would be rendered, by means of his great capacity, and the variety of his attainments, an ornament even to that high station in which he had, at length, been placed. As the Judge of the Equity side of the Court of Exchequer had been alluded to, without any disrespect to the learned Lord now sitting in that Court, he might take the opportunity of saying, that it had caused the greatest disappointment in the profession, to learn that there was no likelihood of another noble and learned Lord being elevated, if it could be so called, to the head of that Court. In his opinion, that noble and. learned Lord was the fittest man in the country to be placed at the head of the Court of Exchequer. His hon. and learned friend had talked of making the Equity side of the Court of Exchequer effective; but, meaning no disrespect to the very venerable and learned person who presided in that Court, he must say, that the placing the noble and learned Lord alluded to at the head of it, would do more in twelve months to render it effective than could be done by any other measures in as many years. He had practised under that noble and learned Lord, and he had no hesitation in saying, that when the judicial talents of that noble and learned Lord were enlarged by practice, the consequence of his elevation would be, the highest popularity to his Court, and the business of suitors would flow into it, and the result would be of greater importance in equalizing the general business of the Courts than any Act of Parliament which could be framed for that purpose could effect. In conclusion he begged to remark that he felt great disappointment at the speech of his hon. and learned friend, the member for Weymouth, on finding that the hon. Member had confined himself to making remarks on the nature of the abuses in the Courts of Equity, and on their remedy, on which remarks no practical result had been founded or proposed.

Mr. Spence

confessed, that he had heard the speech of his hon. and learned friend, who had just sat down, with a great deal of surprise. He remembered the hon. Member's speech on the same subject last year, when he was one of the most strenuous supporters of the proposition for the appointment of a new Equity Judge, it seemed extraordinary, therefore, that he should now propose that the greater part, if not the whole, of the business should be removed from the Equity Courts to the Courts of Common Law. His hon. and learned friend found fault with his hon. and learned friend, the member for Weymouth, for not bringing forward any distinct question, and proposed to remove the business of Courts of Equity to his own Court. Instead, however, of shewing that any part of the business of the Court of Chancery could be disposed of in a more cheap, easy, and compendious manner in the Courts of Common Law, his hon. and learned friend had laboured to shew, that both jurisdictions were equally objectionable. [Mr. John Williams said, he did not say that.] That was the necessary inference from what his learned friend did say; that was the moral which every one must have drawn from it;—every one who did not know the hon. Member's purpose must have supposed that his hon. and learned friend was going to propose some sweeping measure for abolishing the jurisdiction of the Courts of Law and Equity. His learned friend would, therefore, excuse his further entering into the question of removing the Equity business to Courts of Law, and of attempting to reconcile such a proposition with the sentiments uttered by his hon. and learned friend last Session. He meant to address himself to the question—" can we reform the Court of Chancery, by removing or diminishing the existing abuses?" In his humble opinion, they could. He regretted, that instead of the Motion before the House, the speech of the hon. and learned Mover was not followed by a motion for leave to bring in a bill, for, had it been, he was confident he would have had the whole of the House, and the discussion of this subject would not have ended in a splash, as was said the other night by the hon. Member for Middlesex. Mr. Spence proceeded to state, that in his judgment, the House of Commons must take upon itself to reform the Court of Chancery; he could not agree in the opinion, that the Government must originate such a measure. Looking back historically, he observed that nothing effectual had been done by any Government on this subject. The complaints against the Court of Chancery began almost as soon as it became a Court for the administration of justice. Some few nights ago, he moved for certain returns, which would shew what were the complaints against that Court in the reign of Elizabeth. In 1743, those complaints were renewed in this House, which referred them to the consideration of a Select Committee, and that Committee made a report, and came to certain resolutions; one of which, namely, that which related to the exactions of the officers, pointed out the nature of the evil, and of the remedy to be applied, more effectually than any thing that had since been proposed in the House or out of it. A commission was at that time appointed by the Government to inquire into the subject, and a report was made, but it led to nothing effectual, either on the part of the House, or the Administration. Lord Hardwicke, however, issued certain orders, in which he established regulated fees, and endeavoured to extinguish gratuities, expedition-money, and other evils; all of which, however, had continued down to the present hour, accumulating in pressure upon the suitor till they had become intolerable. All this was because the House of Commons left the remedy to the Government, which, from the multiplicity of its duties, could not possibly have time to attend to it. Every Chancellor, and every person who held office under his Majesty, must have such numerous objects to divert their attention, that it ought not to be expected that they could, without assistance, establish any measures for so great a reform as was required. Every Member of the House must give his mite of earnest assistance—he must furnish them with details, he must himself bring forward propositions; for if this were not done, the country would never see a reform of the Court of Chancery. The orders of Lord Hardwicke would give an instance of this. His order was, that a party should be at liberty to take a copy of so much only of a report as he might require: this had been superseded. Lord Hardwicke also expressly declared that no expedition-money should be taken; but expedition-money was taken in almost every office of the Court, under the name of "the stationer's charge." He trusted that, in future, the suitors would not have to rely only on the ill-attended-to orders of Judges, but that the House would adopt resolutions so clear and precise, that not even a Judge should be able to overturn them. Whoever might be the Chancellor, if the Legislature did not watch over him, it would be utterly impossible that, in the multiplicity of his business, abuses should not escape him. He humbly hoped, therefore, that in future, looking to past experience, the House would take care not to trust to orders, but would superintend the Court of Chancery itself. Inl813 there was a commission, and the Commissioners, in their report, exposed a great number of abuses—expedition money and gratuities, among others; yet nothing had been done to this hour to get rid of those abuses, which prevailed to such an extent, as to make it imperative upon the House to step in to reform the Court. With regard also to useless offices, the report he had first attended to, stated, that they were a great evil. It was only necessary to turn over a few pages of the valuable document, lately laid before the House, for which it was indebted to the right hon. Gentleman on his left, (Sir James Graham) and the House would find one person holding three sinecure offices, yielding 240l, 1,816l., and 553l. per annum respectively. Turn over to the next page, and again they found one person enjoying three sinecure offices, yielding salaries amounting, in the aggregate, to upwards of 9,000 l.a-year; and these offices were granted he understood, in reversion. What then was the use of the investigations in 1732? What was the use of the commissions twelve years later? What was the use of all the subsequent inquiries, since the evil had increased to such an enormous extent? He called the particular attention of the House to the gross abuse that prevailed with regard to the patentee for the execution of the Statutes respecting bankrupts. His emoluments came out of the dividends of bankrupts' estates, thereby still further diminishing the small amount of his debt the creditor had to receive. The year 1825 was one of extensive distress; but how must the patentee have rejoiced at it, for it raised his emoluments from 8,000l.to 13,000l. He said, therefore, that some measures must be instantly taken, more powerful and more efficient than any that had been had recourse to, and such could only be taken by the House. There was such a vast field of matter before him, that he was afraid of fatiguing the House by entering upon it; but he would, as cursorily as possible, go through the prominent topics which had been so ably urged by his learned friend, on the preceding evening, adding illustrations to those points in which he entirely agreed with him, stating very shortly where he disagreed with him, and also adverting to those points in which his propositions ought to be extended. First, then, with regard to the important subject of the Registrars' Office. The expense of decrees could only, at present, be judged of from the evidence taken before the Chancery Commissioners; but the returns he had moved for in April last, would, when produced, shew it in its true light. At present, referring to the evidence of Mr. Vizard, Secretary of Bankrupts to the present Chancellor, we find, that in one instance, 60l. was paid for a decree, of which nine-tenths was for recitals. It might be instructive to inquire what were the fees received by the Registrars in 1797, many years after 1732, when the House of Commons thought the enormity of the fees in the different offices called for parliamentary inquiry. In 1797, as appeared by the report of the committee on Finance, in the thirteenth volume of the Reports of the House of Commons, the senior Registrar received 1124l. a-year; and the whole sum received by the Registrars at that time, which was thought very exorbitant, was 4847l. 9s. Hon. Members, not conversant with the subject, would be utterly astonished when he told them that the senior Registrar, now received more than all the Registrars put together in 1797—namely, 4861l.; and the sum of all the receipts of all the Registrars and deputy Registrars, and chief Clerks in the office, now amounted to 21,601l. Upon the evidence before the House, it was clear those who practised in the Courts knew it without such evidence—-that every decree, except one of dismissal, was filled with pleadings, in order to swell the demand made for it. But hon. Members might say, perhaps, these recitals must be of some use. They were of none—they were utterly useless; and if Counsel were to quote a recital in a decree, he would be told, and properly told, by the opposite Counsel, that they would not be bound by that statement, and he must produce the original bill or answer. But let the House look to the evidence of Mr. Walker, the Registrar himself, when examined by the Commissioners. "He was asked,— "Do you who sit in Court and hear the cause, point out what recitals are to be made in the decree?"—" No; I have too much to do."—" Who does it?"—and his answer was, "Why, I leave it to a clerk," and he, no doubt, puts in just as much as he thought the cause could well afford to pay; so that, if the cause would afford it, the decree was stuffed with recitals. Any hon. Member who would look at the evidence taken before the Chancery Commissioners, would find that this was the regular system; nay more, that the abuse of those recitals was not confined to payment for the original decree; for, after getting the order, which was to be embodied in the decree, and after waiting two months for it, the Registrar sends you to a clerk for the decree: who tells you must wait a month or six weeks; and if you say you want it immediately, it is of no avail; but if you say that you want two copies, perhaps it will be produced the next morning. That was the evidence of Solicitors themselves, to be found in the document to which he had before referred. These abuses had grown up in consequence of these abominable recitals; for if they were not in the decree, the clerk could not say to the Solicitor, it would take him a month to draw it up; and if it were confined to the ordering part, the Solicitor could get it, as in a Court of Common Law, the next morning. The next subject was one of great importance—that of the Masters' Office; and with the permission of the House he would make the same comparison, with regard to the fees received by the Masters and their clerks in 1797"and 1830, as he did with regard to the Registrars. Taking all the receipts of the Masters in 1797, it made a sum of 13,664l. The clerks of the Masters received more in 1830 than the whole amount of what the Masters received in 1797,—namely, 13,852l. besides 5,143l.to junior clerks; whilst the Masters themselves received no less than 39,043l., being an excess of more than 40,000l. a-year. In the Report Office, the Master—who had a mere sinecure place, for his clerk did all the duties, and who, in 1798, had 1,069l. a-year, in 1830 had 4,589l. The Masters obtained these enormous emoluments from the system of taking office copies from them; and having ascertained that to be the abuse, the House would know how to apply the remedy, which was not precisely that which had been suggested by his hon. and learned friend. It would be best, he thought, for the Solicitors mutually to hand over copies, and his hon. friend would find, on referring to the Chancery report, or the report on copies made in 1828, that two of the Masters agreed in that suggestion. At present all the cost for copies was clear outlay by the Solicitors in the Masters' Office; and during the whole time the case was in the Masters' Office, the plaintiff's and defendant's Solicitors were put to the expense of taking these copies, without the slightest remuneration, till the costs were paid, and it might happen that the case would stay in the Masters' Office two, three, four, and even six years. The Solicitor must be remunerated for this outlay, which was done by the objectionable system of warrants, for every one of which he got a certain sum. But if the plaintiff were to hand over his copy to the defendant, and was paid for that copy as at Common Law, and the defendant, on the other hand were to do the same to the plaintiff, the Solicitor would not be at so great an outlay, and would be remunerated by the charge for copies, and, consequently, would not be obliged to have recourse to extraordinary means of reimbursement. It was, too, by no means necessary that these fees should be taken by the Masters, in order to give them an adequate salary: for the amount of their lawful fees (he being unable to ascertain how the Masters acquired the right to demand these fees for copies, as in the Statute of Charles 2nd, defining the fees to be taken by the Masters, they are not mentioned,) appears, by the return of the emoluments of one of the Masters, to be 1,377l. It would be better, he thought, to revive that Statute, and declare that the Masters should receive those fees, and those only; and to increase some of them, if necessary, so as to raise their incomes to 2,000l. That sum had already been fixed upon by the Legislature as the utmost amount of salary for a Master in the Court of Exchequer, and he conceived it was sufficient for the duties of the office. We should then have men appointed from those ranks at the Bar where you would find them most competent to nil the office, as it would not be worth while to fill it for an indirect or political purpose, and it would be requisite, too, that it should be filled by a really working man. He next came to a subject of paramount importance, though he knew not whether an humble individual like himself ought to originate such a proposition, but he confessed, looking to the absolute necessity of a reform in the administration of justice in the Court of Chancery, that he felt compelled by duty to state his opinion, which was this: that until the Lord Chancellor shall be remunerated by a salary, instead of fees, it would be utterly impossible to carry the proposed reforms into every branch of the Court. On recollection, he found that such a suggestion had not originated with him. The committee appointed at the instance of his indefatigable friend, the member for Durham, reported that the Chancellor's emoluments were to a great extent made up of fees, which were apportioned between him and his officers, and gave an opinion, that it was inexpedient that such a practice should continue. If any hon. Gentleman would take the trouble to look at the returns presented to the House, he would see that, in some instances, the Chancellor received emoluments in petty driblets, and in others from most objection able sources. He should no longer be the only Judge in the land upon whom could rest the imputation of receiving improper fees. It should be recollected, that the Chief Justices of the Courts of Common Law, the Master of the Rolls, and all the Judges, had had whatever fees they were entitled to, commuted for a regular salary. When it was known that the income of the Chancellor, derived from these exceptionable sources, only amounted to the income of the Chief Justice, it seemed very improper that the chief law officer of the country should be placed in a worse situation than the Chief Justice. If that reform were accomplished, there might be a substantial reform in bankruptcy, but it would not be practicable to abolish recitals or decrees in causes, and keep them in orders in bankruptcy. It would be difficult to do it in either case, if measures were not introduced to do away with the practice of the Chancellor dividing fees with his Secretary. If that practice were abolished, orders in bankruptcy might, be written on the petitions. Let him remind the House, that in 1797, the fees of the Secretary in Bankruptcy amounted to about 1,100l., of which 500l. went to pay the expense of clerks, the other 600l. being his income. Now his receipts were 10,000l. a-year, of which about 4,000l. went to the Chancellor. This was a subject of vast importance, and he rather threw it out for consideration than made any proposition upon it. He trusted that the House would give him credit for his motives in making this suggestion, for he did not know whether the alteration would be gratifying to the Chancellor or not, but he felt so strongly on the subject, that he could not forbear bringing it before the House for consideration. Before proceeding further, he wished to correct an error, unintentional no doubt, into which his hon. friend had fallen with regard to the office of the Accountant-general, which ought to be regulated, and he would state why. It appeared by the Returns, that the Accountant-general received a part of the brokerage; his learned friend did not object to that, but did he not object to the broker receiving 1,848l. per annum? for that was his share in 1828. Now, he "would propose, that what had been done in Ireland should be done here,—namely, that the Chancellor should appoint a broker, and no doubt a man of the utmost respectability might be found who would undertake the office for l,000l. a-year. His learned friend did not object to the salary of the Accountant-general as such, but it should be remembered, that with what he received as Master, his income was 4,452l., which was too much by at least 1,500l. With regard to the Six Clerks'-office, the evidence of Mr. Vizard, so often referred to, had convinced him that the incalculable evils which arose from it could only be got rid of by its utter abolition. He confessed that when he heard Mr. Vizard was appointed the Lord Chancellor's Secretary, he thought it was a good omen of an effectual reform in the Court of Chancery. If he had been asked what man he would select as most proper to be about the Chancellor at the present moment, when he had to reform the Court, he should have said, by all means take Mr. Vizard. The Chancery Commissioners were certainly against the abolition of this office; the reason they gave for it was, that it was proper that there should be a body of practitioners kept up acquainted with the practice of the Court, by which it might be maintained in a uniform state. The Clerks in this Court received about 9,000l.a-year for copies, 3,000l. of which would be saved if copies were mutually handed over by the Solicitors, as he proposed in the case of the Masters' Office. These copies, besides, are made in the most inconvenient form, often as thick as the box on the Table, with a few words,—indeed, in some cases, with no more than two words all down a page. This was perfectly monstrous, and those copies, which cost so much were all sent to the chandler's shop as waste paper. What was extraordinary, too, although the client paid a clerk for an office-copy, if he made any mistakes, such as leaving out a sentence, putting the party to great expense, the Court refused a remedy: so that, although they were paid for as perfect copies, no warranty was given with them, and great expense was often occasioned by their imperfections. But to return to the question as to the practice. There was no complaint of an attorney not knowing the practice in the Courts of Common Law, but in those Courts there were no clerks on whom to rely for the practice; the Attorneys learn it, therefore; and although they might make mistakes, there was no Attorney in a Court of Common Law who would not be ashamed of not knowing the practice of his Court, but a Solicitor never pretended to know the practice of the Courts of Equity; he sent to the Clerk in Court, and, the practice being confined to the breasts of those persons, the Solicitors could not learn what it was. He could point cut many instances where the Clerks in Court had differed as to what the practice is, and as they never went into Court, how could they learn it? At one time they used to be allowed a fee for attendance every time a cause was heard, but, as they never did attend, the commissioners struck off that shameless charge, and they were now allowed only for one attendance. Surely, the practice ought to be laid down by the Judge, but here the proper order of things was absolutely reversed, and the Judge had to learn the practice from the officers of the Court, instead of himself declaring what the rules of practice were. That was a perfect absurdity? He would rather take the suggestions of his learned friend, than of the commissioners, on this point. He said, that the orders of the Court regulated the practice, from the time of Lord Bacon downwards; but it was extraordinary that when one Judge had made a substantive set of orders, he had never recited those of his predecessors, or noticed them in any way, leaving it to the practitioners to find out what orders were in force and what not, and that down to the last set made out by the late Lord Chancellor. '; He should say, therefore, let the Judges of the Equity Courts meet together, re-frame the orders of different periods, and settle the practice generally, and thus prepare a document to which the Solicitor might refer to know how he was to proceed in a cause. But it was more singular in the present practice that no one Clerk in Court is an authorized organ for fixing the practice; and, each solicitor going to some; one clerk, there was often a clashing of; opinion. Only a few days ago a creditor to a small amount was turned round upon a point of practice, and made to pay costs four times the amount of his claims when he would defy any human being to say beforehand what the practice was. There was occasionally a decision in practice, and, by dint of great labour, a man might pick out from the reported cases what the practice was to a small extent. A few days ago he wished to inform a client upon a point of practice, and turned to Mr. Grant's very able book, the last upon that subject, to see what he had said upon it, when, to his utter dismay, after detailing what the practice formerly was, he went on to say —" The above is stated for information; but how far the new rules have altered the practice, or reversed it, or abolished it, it is impossible for any person, on such a point as this to say; it must be left to the decision of the Court."—Thus a Solicitor who wrote a book on the subject, said, it was impossible to tell what the practice is. There was then a vital disease in the practice of the Court, which" could be completely remedied only by abolishing the present system altogether. The Six Clerks'-office was also preserved for the purpose of taxing costs; but he had documents in his hand which completely illustrated their inability to discharge even that duty. He held in his hand a bill of costs, thirty-five sheets long, which was taxed in the Masters' office, in the presence of a Clerk in Court. The bill amounted to 830l., from which, upon taxation, 132l. was struck off'; but afterwards the Solicitor himself relaxed the costs without the Clerk in Court, and took off twice the amount. It might be asked how this happened? Why the Clerk in Court allowed for a copy of ninety folios, when it contained only fifty-one; and for another, 1,150, which contained only 779, and committed other oversights, of a similar nature, although he was one of the most intelligent of the body. The fees, too, which they received were very heavy. He had known a case in which they had received as much as 60l. from each side, and as the Solicitors received the same, it made an expense of 120l. on each side for taxing the costs alone. The Six Clerks themselves had, in effect, sinecures; for they divided the duty between them by taking two months each in the year, for which two months of doing nothing, each, with other small fees, as Comptroller of the Hanaper, received 1,200l. a-year. He said, two months of doing nothing; and hon. Members would agree with him, if they would take the pains to look at the evidence of Mr. Vizard, or of the Six Clerks, which describes the duties of the office; and they might be discharged by any man of the least glimmering of understanding, for they consisted in seeing that the documents were written in a fair hand on proper parchment, and not blotted, and other similar duties. He did not mean to treat the individuals in that office with any disrespect, but he certainly did not think them competent to the office of taxing costs, as suggested by his hon. and learned friend. There was, he feared, no alternative but to employ one or two taxing officers, and he would pay them as he would every one who did anything beneficial to the suitor, while he would get rid of all offices not beneficial to the suitor. He would then proceed to the last subject on which he should trouble the House. Having got rid of the Six Clerks, an office must be erected to keep the Records; and, connected with this subject, he had framed a plan which would as he thought get rid of three-fourths of the abuses existing in the Court of Chancery. He proposed, that all bills should be filed in the office so erected, not written, as now, on a great sheet of parchment, which nobody could read, but in the form of a book. Next to the bills, the answers should be entered in the same way. Then should come the decree, the report, the order, or further directions, all following one another in the same way. This would totally abolish the present expensive system of recitals. At present the decree was carried to one office, the report to another, and the bill and answer to another, so that each document contained a recital of all the proceedings necessary to explain it; but if they were all entered one after another, like sheets in a book, there would be no necessity for a recital, for the report would be explained by the decree which preceded it, as would the order on further directions by the report. He would ask any individual who had ever seen the records of the Courts of Chancery, the immense sheets of parchment, covered, certainly with writing in a legible hand, but he defied any man to read them without a guide for the eye;—he would ask any individual, who had seen these records, whether the plan he proposed would not be a simple, but vast improvement? It would at once put an end to the multiplied copies of the same document—multi- plied, indeed, to an extent hardly conceivable; for it often happened, that the same sentences were written ten times over in the different offices. It would abolish, also, the Enrolment Office; for, not content with all the previous copies for decrees, in order to get the benefit of his decree, a party must have it enrolled —that is, have it written on a long musty sheet of parchment, and laid by. The gentleman to whom he was indebted for many of these details, Mr. Edgar Taylor, had published a pamphlet on the subject, to which all interested in it might refer with great advantage. That gentleman shewed, that the pleadings were copied six times over at least: a Writ of Execution, must contain the order, with all its recitals; and what was most monstrous, although the party succeeding was compelled to obtain a Writ of Execution to enforce his decree, yet he was not allowed it in his costs. Indeed, he must say, that a complete revision of the present system of costs was necessary. he had trespassed longer on the time of hon. Members than he intended; but he thanked the House most cordially for its kind indulgence. He should not have entered so much into detail, had he not, early in the Session, given notice of a series of resolutions "which embody the opinions he had expressed. It was certainly his intention to take the opinion of the House on those resolutions, unless something- effectual should in the interim be brought forward in this or the other House; and he had only delayed the subject till after Easter, from a feeling that, he could not fairly press it upon the attention of Ministers whilst they had so nanny things to attend to. He was sure his Majesty's Government would not consider that it was in the slightest spirit of hostility to them that he had formed this resolution, but he had been grievously disappointed by trusting to other Governments, and felt it necessary, therefore, not to depend too much upon this Government. He had the most perfect conviction that the Court of Chancery might be rendered a Court in the highest degree beneficial to the subject, and he believed that, if the alteration of the hon. member for Winchelsea were adopted, of transferring its jurisdiction to the Common Law Courts, of which he says they have been robbed, we should soon find them more encumbered than the Court of Chancery itself. Let the House keep the Courts of Common Law free from the reproach of delay, expense, and vexation, and endeavour to make such alterations as would relieve the Court of Chancery from such imputations, and then the House would not have to discuss such bills as that brought before it for forcing parties to submit their cases to the arbitration of any individual the Judge may think fit to appoint. That he should decidedly object to: for it would be in effect to deny a man that justice the Constitution of the land entitled him to demand, and would be for Parliament to declare itself incompetent to establish a sufficient Court of Judicature.

Sir E. B. Sugden

submitted that the debate should be adjourned.

Mr. R. Grant

was ready to acquiesce in the adjournment; but he thought Members must feel how much more advantageous it would be to deliver their opinions when there was some substantive proposition before the House, and not on conversation leading to nothing. He did not conceive it was regular to adjourn, for the second time, on an unresisted motion,

Mr. Campbell

merely rose to protest against the doctrine of his hon. and learned friend (Sir E. B. Sugden), that a member of the Common Law Bar could not make a competent Lord Chancellor. This was saying, that to spend twenty years in an equity draughtsman's office, was the best education for a Lord Chancellor, a proposition which he could never acquiesce in. He had the authority of Lord Eldon for saying, that the best Chancellors were those that had been taken from the Common Law Bar. That learned Lord himself went the northern circuit. Sir Samuel Romilly practised at Sessions sixteen or seventeen years, and he believed that the most eminent Equity lawyers had received the best part of their education at the Common Law Bar.

The gallery was cleared for a division on the question of adjournment; but there not being forty Members present, the House adjourned of course.

END OF VOL. L—THIRD SERIES.