COURT OF CHANCERY (IRELAND) BILL. (Hansard, 12 February 1850)

§ MR. TURNER

said, that he was as anxious to avoid the delays and expense incurred in the Court of Chancery in Ireland, and he would add, of the Court of Chancery in England, as his hon. and learned Friend the Solicitor General; and he hoped, either immediately before Easter or immediately afterwards, to introduce a remedy for the delay and expense occasioned by the proceedings in the Court of Chancery in England. Having made that statement, he would mention also that the remedy which he desired to see applied was a sound, safe, and practical remedy. But on looking into this Bill, he must say that it appeared to him, as well as he could form a judgment upon it from the time which he had been able to bestow upon its consideration, that the remedies which it contained were calculated to do more mischief in the Court of Chancery, to create more delay, and occasion more expense, than under the present system. He spoke on that subject without the slightest prejudice, for he could assure the House that the very scheme of the proceeding by petition on which this Bill was founded, was the original scheme which he himself entertained for a reform of the Court of Chancery in England, and to which he had given the most anxious attention. His hon. and learned Friend proposed to base 728 the whole jurisdiction of the Court of Chancery in Ireland on proceedings by petition and affidavit. Now, what was the difference between his hon. and learned Friend's proposition and the course which was now pursued? Did the present proceeding by bill differ from the proceeding by petition, which his hon. and learned Friend proposed to substitute for it? Taking into account the fact that the Bill proposed to give the petitioners power to annex interrogatories to their petition, it seemed to him that it was merely giving another name to a similar course of proceeding, with this additional inconvenience, that whereas, in the proceedings by bill, the signature of counsel was a guarantee for the statements which it embodied, a petition might contain any allegation which a solicitor chose to insert, thus losing the security afforded by the attention and care of counsel to the introduction on the record of that only which was material to be stated for the consideration of the court. Again, by this proceeding by petition and affidavit, the advantage—not a very great one, but still not to be left out of sight—of cross-examining witnesses, was lost altogether, and the court would be called upon to adjudicate on claims to property of an enormous amount—50,000,000l. at least—by a petition verified by affidavit only. He did not mean to say that proceedings by petition ought not to be adopted in any case; but he would assert that in many cases such proceedings would lead to great loss, and that after all the expense of it had been incurred, recourse must be had to the third clause of the Bill, which empowered the Court of Chancery to direct a suit to be instituted. He would also beg the attention of the House to the fourth clause, which provided that if any party, at any stage of the proceedings, objected to the course of proceeding by petition, he might apply to the court to stop the proceedings, and direct a suit to be instituted in the ordinary way; whereupon the court was to make such order as should seem to be just. His hon. and learned Friend might take what measures he pleased to shorten the proceedings of the Court of Chancery, and he (Mr. Turner) would assent to them, provided the proceedings were really shortened; but the course pointed out by the Bill would certainly lead to greater delay than at present. The next branch of the Bill proposed a remedy which, if fully and properly carried out, he had the greatest anxiety to see 729 brought into operation. One of the great evils of the Court of Chancery was, and always had been since the foundation of the court, that it would do no justice unless it could do complete justice; and the consequence was, that when a question arose on the construction of a deed or will, the Court of Chancery ordered that the whole accounts of an estate should be taken before it pronounced an opinion. Day by day cases came under his consideration as counsel, in which he could give no opinion till this process had been gone through. The result was, that the estate went into the Master's office, and hundreds of pounds were spent before he could determine whether the residue was vested or not. He alluded to that part of the Bill which empowered persons to present a petition for the opinion of the court upon a special case; but he must see that this clause was carried out with safety to the rights of married women and infants, as it was well known that all sorts of contrivances were resorted to to defeat the claims of such parties. The ninth clause provided that a party might file a petition, praying for the opinion of the court upon a special case, and that it should be lawful for the court to give judgment upon such petition, which judgment should bind all such persons as the court should direct, and in default of such direction, should bind all such persons as presented the petition. In the absence, then, of any direction by the court, the petitioners would be bound by the result of that petition, and nobody else. But then the clause went on to enact as follows:— And when the opinion of the court is desired in any matter in which any infant, idiot, lunatic, married woman, or any person uncertain, unknown, or not to be found, is interested, it shall be lawful for the Master of the court in rotation to direct the presenting of such petition by way of special case, on behalf of the infant, idiot, lunatic, married woman, or such other person, and such direction of the Master shall be conclusive to all intents and purposes. If, then, any hon. Member of that House happened to have a child abroad in Italy or in France, anybody might go to the Master of the Court of Chancery and present a petition in the shape of a special case, upon which the Master's direction would be conclusive; and when the infant returned to this country he might find all his property gone without the sanction or concurrence of anybody who had the least right to interfere in his concerns. Now, this was not the manner in which 730 the House ought to legislate. Acts of Parliament ought to be more carefully prepared when they came before the House in the shape of Bills, than was the case with the present measure. On looking into the next branch of the Bill, he found it proposed that the court should have power, when any petition was presented with respect to the administration of the estate of a deceased person, the foreclosure and redemption of mortgages, the appointment of new trustees, and the allowance and maintenance to infants, and also with respect to such other branches of the jurisdiction of the court as the Lord Chancellor of Ireland, with the assistance of the Master of the Rolls, should by any general order from time to time direct, refer the petition to the Master, without notice to any other parties, either generally or with such special directions as to the court might seem fit. Let the House only conceive the state to which these provisions would reduce the Court of Chancery. He would take the case which constantly occurred, of eight, ten, or twenty parties going before the Master, all represented by one solicitor. The House would observe that, by the thirteenth clause of the Bill, the Master was empowered to give such relief as the case might require, and was to have the same jurisdiction as might have been exercised by the court in a suit. The court was thus enabled to escape from the responsibility of adjudication on matters referred by parties to its decision, and the powers of the court were given to the Master, who must be set in motion by the solicitor; and in every case when there were eight, or ten, or twenty parties before him, there might be as many propositions before the Master as to what he should do. Bad as the existing system was, it was twenty times better than that which the Bill proposed to establish. He wished his hon. and learned Friend the Solicitor General to understand that he made these observations with a full regard to the other duties which he had to discharge, and to the impossibility of his minutely considering the language and details of the Bill. But he pressed his objections with the greater force on account of an Act passed in the last Session, which the House found it necessary to pass another Act to suspend, and it was therefore, he said, that this Bill was quite a disgrace to legislation. The thirteenth clause, which was the one now in question, provided that the Master should exercise the powers which it conferred 731 upon him, within the limits and subject to the restrictions and regulations therein provided. Now, he had searched through the Bill, and he had not been able to find what limits or restrictions or regulations there were by which the Master was to he guided. He would suggest to his hon. and learned Friend the propriety of either withdrawing this Bill, and bringing in another in a more efficient shape, or of referring it to a Select Committee, where it might be moulded into a form fit for the wants and exigencies, not only of the Court of Chancery in Ireland, but in England also. He could assure him that every notion that had crossed his (Mr. Turner's) mind on the subject of reform in the Court of Chancery, would be quite open to his hon. and learned Friend, if he desired it. His (Mr. Turner's) own Bill was in the course of preparation, and, as he had said already, he hoped to be able to lay it on the table of the House either immediately before or immediately after Easter.

The SOLICITOR GENERAL

confessed that he was a little taken by surprise at the warmth exhibited by his hon. and learned Friend the Member for Coventry, but he was quite aware that this was only the beginning of a great deal of opposition which the Bill would have to encounter. He could not say, however, that the observations of his hon. and learned Friend had quite convinced him that the Bill was so defective as he represented. His hon. and learned Friend said that the proceedings by petition was objectionable, because it was nothing more than proceeding by bill. If so, it certainly would not be more objectionable than the present mode of proceeding. The objection that a petition had not the sanction of counsel's signature might be obviated, when the Bill got into Committee, by requiring counsel's signature to a petition. His hon. and learned Friend said that statements might be introduced into a petition which would not appear in a bill; but it should be borne in mind that the Court of Chancery had the power of striking out any portion of the proceedings which was not relevant to the matter in issue, and of making the parties pay for the improper introduction of that matter. Their jurisdiction extended as much over petitions as over proceedings by bill in this respect. And it should be recollected that the costs of the proceedings by bill were in proportion to its length, which was not the case in petition; and one of the greatest reforms in the Court 732 of Chancery would be to make it the interest of the practitioner not to make the proceedings of great length. Another objection put forward by his hon. and learned Friend was, that there was no cross-examination of witnesses. That objection was open to a double answer. In the first place, the Bill provided that the parties who proceeded by petition might annex interrogatories to the petition, while the respondents also might file interrogatories, to be answered by the petitioners. The court also had power given by the Bill to direct evidence to be taken vivâ voce. But the system of the examination of witnesses in the Court of Chancery was so preposterous, that the late Mr. Bell stated, when examined before a Committee on the subject of reform of the Court of Chancery, that in the whole course of his experience he never had cross-examined a witness, unless he had examined in chief, or unless he could be cross-examined on the ground of interest. The reason for this caution was obvious to those who were acquainted with the practice of the court; the witness was cross-examined without its being known what he had deposed to in his examination in chief. The consequence was, as all practitioners of the Court of Chancery knew, that a cross-examination was very likely to prove an adversary's case. Another objection urged by his hon. and learned Friend was, that the 9th clause provided that the opinion of the court upon a special case bound the parties by whom the petition was presented, and also those parties who were under disabilities, if a petition was presented in their name. But in the latter class of cases the sanction of the court or of the master must be obtained before the question could he argued. Then counsel appeared, and argued on behalf of the party disabled, and whether that party was in England or in France was of no more importance than whether he was in the next street or at the sea-side. No special case would be sanctioned by the master if a mere stranger interposed. Some reliance must be placed on the judges of the court, and their knowledge of the principles and practice of equity. He did not pretend to say that the phraseology of this Bill was exact in every particular, and he should be only too happy to avail himself of the results of his hon. and learned Friend's knowledge and experience when he brought forward his Bill; but he must say that the present system of the Court of Chancery amounted to a denial of justice in a very 733 great number of cases, since it had been stated by so high an authority as Mr. Pemberton Leigh, that no man recommended a recourse to the Court of Chancery unless the matter in dispute was of the value of 1,000l. That was a disgrace to the English system of procedure; and as it was essential to alter this cumbrous system, the Legislature could not well do otherwise than trust to the discretion of the judges to make such orders as they thought fit to issue for that purpose. His hon. and learned Friend objected to the clause by which certain classes of petitions might be referred summarily to the master, even without notice, and by which he was empowered to determine what the parties themselves wished to refer to the decision of the court. He admitted that the court ought to determine all those matters which should be decided before a reference to the master, and therefore the Bill gave a permissive and not a compulsory power. The clause specified four particular classes of cases. Now, let it be supposed that a man filed a long Bill stating a will, and other proceedings, under which he was interested. In the ordinary course of things there would be a Bill, an answer, an amended Bill, a second answer, a replication, and so on, till five or six counsel were retained to conduct the proceedings in court, and then one of them would get up and say, "My Lord, this is a common administration suit, and I ask for the usual decree." Now, he (the Solicitor General) would say, "Get the usual decree at once, and abolish proceedings which are of no use whatever, except to put money in the pocket of the practitioner." So, again, with respect to the foreclosure and redemption of mortgages; it was proposed that these matters of course should be referred to the master in the first instance. Very considerable steps had already been taken in that direction, as the working of the Joint Stock Companies Act evinced. The master took the accounts, which was the only matter in issue between the parties, who had, nevertheless, the power of appealing to the court from his decision. A power was also reserved to the court to substitute the old mode of proceeding, and to parties also to apply to the court for the same purpose, at the peril, it must be admitted, of costs. There might, perhaps, be objections to the wording of the Bill, but he felt that he was justified in calling on the House to support him in carrying it into Committee, He must now beg permission 734 of the House to say one word on a matter personal to himself. The hon. and learned Member for Coventry alluded to what he was pleased to call disgraceful legislation as regarded a Bill which was brought in and passed last year, and with respect to which, towards the end of the Session, another Bill was introduced to suspend its operation until a late period in the present year. The Bill which passed last year through both Houses, would, he believed, be found highly beneficial, and he was not aware until a late period that objections were entertained to some of its provisions in certain quarters. He might have stopped the Bill at any of its stages, as was well known to the hon. and learned Member for Newark, but he preferred allowing it to pass, and bringing in a short Bill to suspend its operation for a certain period; he, therefore, did not think that the hon. and learned Gentleman was justified in using the expression "disgraceful legislation."