Commons Sitting of 16 July 1839

MINUTES.
Petitions presented. By Colonel Trench, from Stationers of Scarborough, against using Stamped Envelopes to collect the Postage of Letters.—By Mr. Norman, from East Kilbride, against a further Grant to the Church of Scotland.—By Viscount Castlereagh, from Donaghadee, against any further Grant to Maynooth.—By Mr. Easthope, from Leicester, Nottingham, and various places, for the Abolition of the Stage Coach Duties.—By Mr. Hume, from Slane, and Colton, against the renewal of the Bank of Ireland Charter; and from certain Artists, for an investigation into the management of the Fine Arts.—By Mr. Hodges, from Landowners in Kent, for an Amendment in the Tithe Commutation Act—By Mr. Wakley, from the parishes of Holborn, against the Collection of Rates and Poor-law Commission Continuance Bill; from the Working-men's Association of London, for an Inquiry into the cause of the Birmingham Riots.—By Captain Gordon, from Aberdeen, and Irvine, for a Uniform Penny Postage.

COURT OF EXCHEQUER.
Mr. Freshfieldsaid, that his object in rising to address the House on the present occasion was, to show the situation of the business, or rather of the suitors now in the Court of Chancery—to point out the assistance Which that Court might receive from the
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Court of Exchequer, if the Court of Exchequer were rendered efficient—to explain the circumstances which prevented that latter court from being efficient—to offer to the House a remedy calculated to render it efficient, and to demonstrate the necessity of applying a remedy from the returns at present upon the table of the House. He was aware that it was incumbent upon him to be as brief as the importance of the subject warranted; and therefore more abruptly than was agreeable to his own feelings, he would enter at once into the grievances of which he then rose to complain. He believed that every Gentleman who then heard him was aware, that it appeared, upon the face of the returns then upon the table, that there were 712 causes now waiting for hearing in the Court of Chancery. It was also well known, he believed, to all present, that when you talked of a cause being set down for hearing in the Court of Chancery, it implied that there had been a considerable delay before the cause had arrived at that stage. If, therefore, hon. Members would carry in their recollection the delay which occurred previously to a cause being set down for hearing, they would see at once that it was a most serious grievance to the suitor, that 712 causes must be heard before his own could be called on. Let them but add to this, that the present Lord Chancellor had admitted, that if no cause were set down in the meantime, it would require three years to clear off the 712 causes which were now in arrear for hearing in the Court of Chancery. It must, therefore, be clear to the House, that for the next three years, even though the parties were at present ready for hearing, the doors of the Court of Chancery were as much shut against all fresh suitors as if no Court of Chancery existed. He knew that it had been said, that this was a crying evil, because it was a denial of justice. He was inclined to say, that it was a more crying evil than a denial of justice, for it was a delay of justice. He had no doubt, looking at it as a matter of history, and following out the circumstances of families, that in an absolute monarchy, where the law was the arbitrary will of the sovereign, it was a less evil that he should protect his favourite against the operations of the tribunals by forbidding all proceedings against him, than that in a system like ours men should be exposed to a liability of delay, which, after a long alternation

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of hope and fear, was certain to be followed by the most disastrous disappointment and distress. If it were necessary to illustrate the point, he could adduce many cases that would be most interesting to the House. He would, however, confine himself to two, because they tended to show the extreme inconvenience which resulted from the delay, and not from the denial, of justice. In one case the party was, in his firm opinion, entitled to a large property, which was at present the foundation of a peerage, and on which the maintenance of that peerage depended. That individual—a gentleman of great classical attainments and small independent fortune—felt that it was due to his only child to institute proceedings in the Court of Chancery for the recovery of his property. He did institute such proceedings—he encountered great and enormous delays—he expended so large a portion of his fortune, that he felt himself entitled to withdraw from the contest into that happy retirement in which he delighted to live, because he felt that the attainment of his object was, in point of time, impossible in his own life, or so costly in point of expense, as to be likely to absorb all the remainder of his resources. It might be said, that this was a mere imaginary claim, or that if it was not, he must have succeeded in his suit. He begged the House to allow him to state two facts in support of this gentleman's claim. When he determined to leave the proceedings in such a stage that his son, when he came of age, might take them up, so strong was the sense of his opponent as to the generosity of his conduct, that he sent him a full service of plate, a very unusual return for any person to make for an attempt to recover from him 30,000 l. a-year. So far, too, was the case from being considered a case of a doubtful nature, that it was supported by the unanimous opinions of some of the very first lawyers of the day.—It was supported by the opinion of Sir Arthur Piggott, of Sir S. Romilly, of Sir V. Gibbs (then Attorney-general), of Mr. Sergeant Williams, of Mr. Sergeant Shepherd (afterwards Lord Chief Baron in Scotland), of Mr. Butler, of Mr. Preston, of Mr. Mayne (afterwards a judge in Ireland), and of Mr. Abraham Moore, of the western circuit. This was a case where the mere delay and expense prevented an individual from arriving at justice. Delay here was expense, for expense attended
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every step of the proceedings, though no advantage was derived from them. The next case to which he would call the attention of the House was of this nature:—An individual died in the year 1803. His daughter, who was abroad at the time of his death, instituted proceedings in the Court of Chancery in the year 1809. Her proceedings were delayed, so that she did not obtain a decree in her favour till the year 1812. Let not the House, however, suppose that that decree was like a verdict in a court of common law, which would immediately give her the fruits of the struggle she had passed through. No: by that decree she had only established her right to be a party to the suit. The extent of her right was yet to be decided in the Master's office. An account was ordered to be taken by the Master of the sum due to her. Now, having obtained her decree in the year 1812, when did the House suppose that she had succeeded in getting her first report? In 1817; for five years the matter was in the Master's office before he made a report, and then he found that no less than 62,000 l. were due to her. In 1818, this report was brought under the consideration of the Lord Chancellor. On objections taken to the grounds on which the account was taken, the report was referred to another Master, Mr. Courtenay, now the Earl of Devon, to review it. Five years more elapsed, when Master Courtenay found that, not the sum of 62,000 l., but a sum of 36,200 l. were due to her—that is, about 26,000 l. less than was awarded to her by the former Master. These proceedings, be it observed, were going on in the Master's office. In the meantime large fees were accruing, and were paid every term. But it was not only in the Master's office that this expense was incurred. Would the House suppose that the party, having obtained a decree in her favour in 1812, there were proceedings taken to dispute her right to that decree? Yet, so it was. In the year 1825, the House of Lords, to whom appeal had been made, affirmed the original decrees; so that, while the parties had been proceeding in the Master's office to take the account, they had also been proceeding in the House of Lords to see whether the decree could be maintained or not. There, too, the plaintiff was declared right. It might be supposed, that at this stage of the suit the 36,200 l. was

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paid. No such thing. In 1825, the House of Lords declared that there could be no question as to the plaintiff's right. Two Masters in Chancery had already reported on the extent of the money due to her. One saying that it was 60,000 l., the other that it was 36,200 l. But in 1827, this second report having been under the consideration of the Court, Lord Chancellor Eldon made an order that this report should be referred to a third Master. In consequence of Lord Devon having ceased to be a Master of the Court, it was referred to a third Master. Lord Eldon, however, in making that order for the review of the second report, imagined that the defendant had admitted, that 18,500 l. was due to the plaintiff, and accompanied it, as he thought, by the just and equitable order, that 18,500 l. should be paid into court to wait the event of the further proceedings in the suit. In the year 1828, Lord-chancellor Lyndhurst thought, that it was not so clear, that the defendant had made the admission which Lord Chancellor Eldon supposed him to have made, and in consequence discharged the order of his predecessors. Now, how much did the House suppose, that the plaintiff in this case recovered? Tired out by delay, and inconvenienced by expense, no step had since been taken: but one party despairing of recovering her rights, and the other not having the moral courage to proceed for the recovery of the expense to which he had been put during his defence, rested on their arms, and from that time to this no further proceedings had been instituted on either side. He mentioned these two cases to show that the great inconvenience arising from the delay of justice was more disastrous even than the denial of justice. These were not, however, extreme, but favourable cases, they were the cases of affluent parties, not, as they might have been, of parties in other circumstances. He called upon the House to consider the uncertain station in which all parties to this long-protracted litigation were placed. Even the sleepiness of the court drew after it the most disastrous expenses, far exceeding any amount of costs which might be suggested in the remedy he intended to propose. He could conceive no state of things more harassing than that which left the parties in doubt as to whether they should be ruined by want of success, or by the extremity of delay, Such a state
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of things enabled the wrong-doer to sit in tranquillity and triumph; for while it discouraged bonâ fide litigation, it encouraged malâ fide litigation, and, as Lord Langdale expressed it, invited the wrongdoer himself into court. The rich man could make the delays a source of oppression to his inferiors in wealth: for if he determined to resist a just claim, he could resist it with a moral certainty, that in his life time the suit would not be ended, and if he determined to advance an improper claim, he could advance it with no less equal certainty, that be would never be called upon to pay costs for it. In every point of view, then, the delay of justice was more disastrous than the denial of justice, both in its immediate and in its remote consequences. If this, then, were one of the faults of the Court of Chancery, arising out of its being so overloaded with business, that there were now in the Court of Chancery, and in the Court of the Master of the Rolls 712 causes set down for hearing, ought not some assistance to be furnished to it? Was there not a foundation laid for asserting, that it was a source of grievance, and that an immediate remedy ought to be applied to it? For a certain period the Court of Chancery had the independent assistance of the Court of Exchequer. Up to the year 1817, the Court of Exchequer sat daily as a Court of concurrent jurisdiction with the Court of Chancery. It was an ancient court, and had every power of a court of Equity. It had also a common law jurisdiction; and its two courts were always sitting during the term, and for some weeks after it. There was, therefore, no day in which the suitor could not institute proceedings in the Court of Exchequer. He believed, that as a court of equity; it never sat less than 123 days in the year. The convenience to the suitors was great, and even the expense was not so great as that of the Court of Chancery. The suitors also derived considerable advantage from having the choice of going, as they thought expedient, either to the Court of Exchequer or the Court of Chancery. In the year 1818, however, the Legislature began to meddle with the Court of Exchequer as a court of equity; and the result was, that its utility was impaired as a court of equity, although it was increased as a court of common law. The first change made in the constitution of the court was, to enable the Lord Chief

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Baron to sit alone as an equity judge, whilst the other barons were sitting as judges of common law. The moment that act passed, it led to a considerable increase of business on the common law side of the court. But the suitors in equity had no longer their 123 days; the Lord Chief Baron had other claims upon his time. When the Court sat, the public was not satisfied if it had only three barons present. The public expected the Court to be what the lawyers called full, and therefore the Lord Chief Baron gave as little of his time as he could to the equity business, thereby reducing considerably the number of days which he sat as an equity judge. The next change in the constitution of the Court took place in the year 1830. Then the Court of Exchequer of Pleas was declared to be no longer a close Court, to be practised in only by certain officers specially appointed to their offices, but a court open to all the attornies of the superior courts at Westminster to practise in. The consequence was, an immense influx of business into the common law side of the court; and if, prior to the year 1817, it was essential that the Lord Chief Baron should give but a few days to the equity business of this court, and should devote as much of his time as possible to the common law side of it, it followed that the subsequent great influx of business into the common law side rendered it still less possible for him to give his attention to the proceedings in equity. He ought to have stated, that before these acts passed, there were commissions issued to appoint, by warrant, one of the puisne Barons to preside in equity, instead of the Lord Chief Baron, when he was engaged at Nisi Prius. It would be seen, however, by the House, that these acts never had the operation which was intended by the Legislature. Well, in 1833, a further change took place. An act was passed for the better administration of justice in the Privy Council, and it provided, among other things, that a puisne Baron should sit in equity, when the Chief Baron was engaged in common law, Nisi Pries, or in the Privy Council. He would only read the recital of the act, to show the House that he had not mistaken or misstated the effect of these legislative alterations:—
"And whereas, by reason of the great increase of business on the common law or plea aide of the said Court of Exchequer, the Lord
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Chief Baron is prevented from giving so much time as heretofore to the sittings on the equity side of the said court, and the sittings on such equity side of the said court being necessarily suspended during the absence of the Lord Chief Baron, great inconvenience is thereby sustained by the suitors and practitioners oil the equity side of the said court: And whereas the Lord Chief Baron may, by this act, become liable to the performance of other additional duties unconnected with the said Court of Exchequer, and it is desirable that the said Court of Exchequer should sit as a court of equity, without any unnecessary interruption."
And then followed the remedy, which was, to give one of the puisne Barons the right to sit in equity on such days as the Lord Chief Baron should sit on the common-law side of the court during the term, or at Nisi Prius, or in the Privy Council. Still the Legislature was not satisfied, and in 1836 another act was passed, and it was remarkable to see the fatality with which the Legislature had interfered with the equity side of the Court of Exchequer. This act allowed a puisne Baron to sit while the Chief Baron was on the circuit. Now, could any Gentleman who was at all excited by curiosity, and who had pried into the movements of the judges, tell him how many days a puisne Baron could sit while the Chief Baron was on the circuit? The act was almost wholly inoperative, for the puisne Baron must be on the circuit as well as the Lord Chief Baron, and it should be recollected, that there was only one puisne Baron who was appointed at a time, and the warrant had to be altered if the particular puisne Baron appointed was unable to attend. But the Legislature did not stop here. Even a fifth act was passed in 1838, enabling all the Barons to sit in bank after the term, and when the Lord Chief Baron was trying causes at Nisi Príus in London and Middlesex. Now, even those who formed the lay part of the House would see, that if it was material that the Barons should form a strong court while they set in bank, there was very little chance of the puisne Barons sitting, as it were, in a third court, the court being permitted to sit in bank to hear those motions and arguments which could not be heard in the course of the term, and it followed as a matter of course, that even more than before, the equity side of the court was closed, and almost hermetically sealed. The returns for which he intended to wove would

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show, that the 123 sitting days in equity had been so reduced, that parties were deterred from going into court, and suitors might be said to be as much denied justice in the Exchequer as in the Court of Chancery. Now, what was it which be ventured to propose as a remedy for this evil? He would say, "do all that the Legislature has intended, but has omitted to do." The Legislature intended to create an effectual court of equity, and intended that a puisne Baron should always sit when the Chief Baron was not able to attend on the equity side of the court. The confusion, inconvenience, and delay, to the practitioners and suitors occasioned by these acts was extreme. It often happened that a puisne Baron might come down to the equity court, and the parties might all be ready, in the expectation that the Lord Chief Baron had gone down to Guildhall to try causes at Nisi Prius. The cause would hardly be opened, when a messenger would come to say, that the Lord Chief Baron felt rather unwell, and that he had requested Mr. Baron Gurney to sit for him at Guildhall. Upon this the Baron sitting in equity would say, "Then I have no sort of jurisdiction; I am very sorry for the parties, and all the expense they have been put to, but I can do nothing: I am functus officio." He would venture to say, that in the very last sittings in equity in the Exchequer, no less than thirty orders had been made for the payment of money when the puisne Baron had no sort of jurisdiction, and yet these orders were made, and he had no doubt that they would be obeyed, The remedy for all this would be found in the simple and just expedient of having one judge sitting always in equity, so that the equity business of the Exchequer might be transacted, and the Court of Chancery he relieved. But was there any other recommendation of the remedy which he had proposed? They would recollect that a court had been built for the equity side of the Exchequer; it wanted only a judge to sit there. There were already officers of the court; no new machinery was required, and the only question was, whether Mr. Baron Alderson should sit there as at present, or as a permanent judge in equity? He was not to be deterred from making this suggestion, because interested motives might be ascribed to him; for he would say, at the peril of a sneer from hon. Gentlemen opposite, that he was
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always anxious to reform the law, and he would never sacrifice the interests of the public by refraining from the suggestion of any alteration which appeared to him to be practicable and expedient.
The hon. Member was interrupted by a motion that the House be counted, and only thirty-eight Members being present, the House adjourned.