HC Deb 06 February 1850 vol 108 cc402-10
The SOLICITOR GENERAL

then moved for leave to bring in a Bill to simplify and improve the proceedings in the High Court of Chancery in Ireland. The Bill had been perused by the Lord Chancellor and the Master of the Rolls in Ireland, and both those learned persons had expressed their general approval of the objects of the Bill.

MR. GRATTAN

inquired whether the measures proposed by the Government would at all affect the equity side of the Court of Exchequer in Ireland?

The SOLICITOR GENERAL

said, the Bills of which he had given notice did not refer at all to the Court of Exchequer in Ireland. He believed that it was the intention of the Government to propose a Bill relating to the equity jurisdiction of the Irish Court of Exchequer, but he was unable to say when such a measure would be submitted to the House. The first object of the Bill he now asked leave to introduce was, to get rid of the prolix system of pleading which existed in the Court of Chancery, and to substitute a short statement of facts by way of petition, instead of the present prolix statements by way of Bill. The petitioner might append to the petition such interrogatories as he thought fit, which any respondent to the petition might be called upon to answer; and the petition was to be accompanied by a short affidavit, stating the correctness of any facts which required verifying. The effect of this change would be, that the matter at issue would come much more speedily before the Court; and the practice of filing pleas and demurers, which led to such unnecessary delay, would be put an end to. The Bill proposed that the Court, upon hearing the petition, might make an order upon it, either with or without an examination upon the interrogatories; and that it should be at liberty to make any further orders in the same matter upon motion. The Bill also proposed to enable the Court to take evidence vivâ voce, in such cases as it might think fit. Those cases, he apprehended, would not be very numerous; because generally, when the Court thought it necessary to obtain evidence vivâ voce, it would probably deem a jury the best tribunal for deciding the question. By these means they would get rid entirely of bills of reviver and supplement. In many cases which came before the Court of Chancery, the only question in dispute was the construction of some particular instrument, the construction perhaps of five or six words in a deed, or of a couple of clauses in a will. Now, by the law of Scotland, there was a power by action of declarator of ascertaining the opinion of the Court in cases of this kind. This Bill proposed that, in such cases, when there was no other matter in dispute between the parties, they should have the power of taking the opinion of the Court upon a statement in the nature of a special case, merely stating what the point was upon which the opinion of the Court was desired. The Bill also proposed a change with respect to cases referring to the mere administration of assets. As the law at present stood, for instance, if a question arose as to the accounts of an executor, there were long preliminary statements by bill, which were only a matter of expense, and were of no benefit to the parties. He proposed that matters of this description might be brought before the Court by a short petition, and that the Court might at once refer them to the Masters. He proposed, also, that the Lord Chancellor and the Master of the Rolls should have power to make orders to carry out these measures, and to enable the Masters to deal with cases of this kind. It was proposed also to limit the time in which appeals might be made from the Masters to the Court, and from the Court to the House of Lords. He thought that probably a month in the first case, and a year in the second, might be fixed as the time in which the appeal should be a matter of right; but he only mentioned this as a suggestion, for the period would, of course, be determined in Committee. It would probably be necessary to take some means to prevent prolixity in the petitions; but this, he thought, would be best effected by the general orders of the Court. Sir Edward Sugden, the Master of the Rolls, and other Judges, had, he believed, been desirous of adopting general orders, with a view to avoid prolixity; and this was, he thought, a matter which it might be left to the Judges to carry into effect. With respect to the minor details of the measure, he might mention that it was proposed that the secretary of the Lord Chancellor should receive a stated salary, instead of being paid by fees; and that the Master of the Rolls in Ireland, who had not at present a secretary, should have the assistance of such an officer.

MR. F. FRENCH

said, that if these alterations were so essential, they should also be extended to England. The hon. and learned Solicitor General had been complimented upon the Encumbered Estates Act; but it could not as yet be said whether it was likely to work well or not. It seemed that additional expense was to be incurred when three-fourths of the business of the court was about to be taken away. Under no circumstances should there be the appointment of a new officer.

MR. GROGAN

said, that the scheme proposed by the Government, as sketched out by the hon. and learned Solicitor General, would simplify proceedings in the Court of Chancery in every possible point of view—both with regard to time, expense, and the vexatious and harassing annoyances which attended proceedings in that court. He thought it was a matter of regret, if the Court of Chancery could he so easily reformed, that they should have recently created a new and anomalous tribunal under the Encumbered Estates Act.

MR. SADLEIR

said, his experience led him to believe that the measure proposed by the Solicitor General would be attended with most important and beneficial effects. He had no doubt that one of the immediate consequences of the adoption of this Bill by the Legislature, would be the speedy extension of a similar measure to this country, because the evils which it was intended to remedy existed in equal force here as in Ireland. He had almost daily opportunities of witnessing the frightful oppression and wrongs to which agriculture and commerce were subjected in this country, in consequence of the absurd, unjust, and prolix proceedings of the Court of Chancery. There were three palpable and important defects in the Courts of Chancery in this country and in Ireland. Both those courts were defective in their modes of proof, in their modes of trial, and in their modes of appeal. The present Bill would, to a certain extent, though not to the full extent he desired, effect an amendment with regard to the mode of proof adopted in those courts. The hon. and learned Gentleman proposed to grapple, to a certain extent, with the prolix system of written pleadings, and to give a certain discretionary power to equity judges in Ireland to substitute for written depositions vivâ voce evidence. He believed that the system of written pleadings was the very best that could be devised for clouding the truth with exaggeration and fiction, and he was satisfied that it frequently led to the defeat of justice. Indeed they often found, in most important and critical questions, that the Court of Chancery, after vainly endeavouring for years to ascertain the truth, was obliged eventually to send questions of fact to he determined by a jury. The present Bill would remove many absurdities; he believed it would be a successful experiment, and he hoped to see it followed by a still more complete amendment of this department of the law.

MR. W. P. WOOD

viewed the introduction of the Bill with great satisfaction and delight, and he was only sorry that it was to be confined to Ireland. He was anxious to ascertain whether there were any peculiar differences between the practice of the Court of Chancery in Ireland and that in England, to account for the Bill being confined to Ireland. The hon. and learned Solicitor General had stated the grievances which he proposed to remove, to be the difficulty of bringing causes to hearing; the imperfect mode of collecting evidence; the delays with regard to the bills filed in the court; the great inconvenience of the bills of revival and supplement; the great difficulties of bringing single points on which parties might wish to he advised upon their rights, without having to lay all their affairs before the open court; and the enormous expenses attending all the proceedings. Now, all these inconveniences existed in the same, if not in a more aggravated form in England; and therefore, in proportion to the satisfaction he felt in having them remedied in Ireland, was his dissatisfaction at not having them remedied in England. The hon. and learned Member for Coventry, at the conclusion of the last Session, stated that it was impossible to continue the present state of things in the English Court of Chancery any longer, and that if no measure for its reform were proposed by the Government, or any hon. Member, he would himself introduce a Bill for the purpose. He (Mr. Wood) thought it would be more satisfactory that Her Majesty's Government should bring forward such a measure, than that any hon. Gentleman should do so, although there was no one more able or better qualified than the hon. and learned Gentleman the Member for Coventry; and he trusted that even yet, before the termination of the Session, such a Bill would be introduced. No time should be lost in a case which gave rise to so much pain, misery, vexation, and ruin. It was almost too light and ludicrous a mode of description, yet he hoped he would be forgiven for repeating the definition of the Court of Chancery given by one of the most eminent and learned practitioners in it—which was, that it was a great machine for grinding down the landed interest into three per cent consols, and then distributing it in the shape of costs. He did not find any mention made by the hon. and learned Solicitor General of the Masters' offices. Probably they did not require reformation in Ireland. If not, they most certainly required it here. Reformation in the Masters' offices in England would form one of the most essential points of a measure for this country of a nature similar to that before the House. There was no blame to be attached to the Masters themselves; but the system and mode in which business was conducted in that branch of the court, made it impossible that there should not be an enormous portion of the delay and expense incident to our Court of Chancery attributable to that department.

MR. HENLEY

thought it would be impossible to resist the extension of the measure to England. The Government had been obliged to introduce a Bill for the purpose of simplifying the mode of dealing with encumbered estates in Ireland; and he thought that one of the effects of some of their late legislation would soon be, to reduce the landed property of this country to a condition similar to that of the encumbered estates in Ireland. Before that event occurred, he thought it would be well to give them the advantage of the important machinery provided for Ireland. And when the same evils existed in England as in Ireland—and they had heard from the Member for the city of Oxford they did exist—he could not see why words should not at once be introduced into the Bill which would extend its application to England. If that were not done in its earlier stages, or some promise given of a similar measure for England, he would take the sense of the House upon the subject at a future stage. But it was certain that the union between the two countries would never be complete until the laws in both were made precisely the same. The making any difference was only continuing the evils under which the connexion between the two was now labouring. A reformation in the Masters' offices was most wanted in, England; but if they could not have that immediately, let them not at all events be shut out from the advantages that were about to be given to Ireland.

MR. M'CULLAGH

thought that the exposition given by the hon. and learned Solicitor General, of the purpose meant to be effected, by the Bill, would tend very much to allay feelings of distrust and dissatisfaction with which the public mind had recently been filled upon this subject in Ireland. An impression had for some time prevailed in that country that the Government entertained projects for the gradual, if not immediate, abolition of the courts at Dublin, and the centralisation of the supreme judicatures here. The introduction of any new measures dealing with those tribunals, was certain, therefore, to excite, in the first instance, no ordinary curiosity, and their details would doubtless be scrutinised with some degree of jealousy. The statement, however, which had been given of the scope and provisions both of the Bill then before the House, and of that respecting the three courts of law, might, he hoped, be taken as an indication that the apprehensions to which he had referred were destitute of foundation. In any case, he felt satisfied that the best security that could be given to the permanence and independence of the Irish courts, whether of law or equity, would consist in the removal of those blemishes and evils which, in the course of time, were sure to be found in all human institutions. With regard to the objection raised by the hon. Member for Roscommon, to providing the Master of the Rolls in Ireland with a secretary, he must say that he considered the creation of such an office most just and reasonable. Every other equity judge in the realm had such an assistant in the discharge of his duties; and he (Mr. M'Cullagh) had no hesitation in stating that he believed one eminent Judge, in his anxiety to discharge faithfully the laborious functions of the Mastership of the Rolls, had suffered most severely in health. He alluded to the late Sir M. O'Loghlen, whose early loss the public and the profession had so much cause to deplore. Many of the hours which ought to have been devoted to repose, were devoted to the minute examination of documents and papers connected with the business of his court; and there certainly was no judicial office in which the assistance of a properly qualified person who should act as secretary was more required.

MR. MULLINGS

would give an instance which came within his own knowledge, of the oppressive nature of proceedings in the Court of Chancery. A gentleman left the country in the year 1817; he left the care and management of his farm to his brother, who continued to work it for him until the year 1822, when he returned, and received an account from his brother of the working of the farm, the balance at foot of the account being between 400l. and 500l. A quarrel shortly afterwards took place, and the affair was thrown into the Court of Chancery, where the first demand was an account of the receipts. That having been rendered, the brother was told to clear himself as to the expenditure by vouchers and stamped receipts, as they only would be accepted. To procure them he had to scour the country, and obtain between 300 and 400 affidavits, and the discussion continued from 1824 to 1837. The result was, that the balance proved was 79l. instead of 500l., and the costs, which amounted to 1,700l., were divided between the parties.

MR. WALPOLE

could not help joining his voice with others for the extension of the operation of the Bill to England, if it should be proved to be a well-considered measure. The hon. and learned Member for Oxford city had intimated to the House, that the hon. and learned Member for Coventry, than whom there was not a person in the profession more qualified to pronounce an opinion upon the subject, was desirous of bringing in a Bill for the reformation of the Court of Chancery as soon as it could be prepared. But if Her Majesty's Government would undertake the production of such a measure themselves, he knew that no one would be more ready and willing than his hon. and learned Friend to communicate his views and intentions to them. In case the Government should think it advisable to extend the provisions of the Bill before the House to England, he was certain they would receive not only the concurrence of the Chancery practitioners in the House, but also that of the practitioners at large. In his opinion, they were bound to remedy evils of such magnitude as were admitted to exist in the practice of the Court of Chancery as soon as they were exposed. But the chief evils were not so much in the mode of pleading, as in the expense and delay of Masters' offices. The great disadvantages of these offices were, that, in the first place, no publicity was given to their proceedings; and, in the next place, that the proceedings by warrants were not carried on de die in diem, or, as he would have them, de hora in horam, but were broken up and continued from time to time. No good would be accomplished until the system of warrants was done away with. The parties should be compelled to go on with the inquiry in the Master's office, as they would be obliged to go on with the cause itself when it was once set down upon the paper for hearing. He firmly believed that not one quarter of the evils of the Court of Chancery, at least in England, would be remedied, until the proceedings in the Masters' offices were thoroughly reformed. In Ireland, Sir Edward Sugden, when Lord Chancellor, had done this to a great extent. They were there required, as far as they could, to continue the proceedings de die in diem until concluded. Whether that system were still in operation, he did not know. But, at all events, he knew that it was a good one. With respect to these changes, he thought that his hon. and learned Friend the Solicitor General would do well if he would send the Bill before a Select Committee previously to its coming before the House for discussion. And when the time for discussing it came, he trusted that hon. Gentlemen would attend, and not leave it entirely in the hands of lawyers. By thoroughly debating it, it might then be sent forth in a more perfect state.

Leave given.