HC Deb 12 June 1850 vol 111 cc1128-40

Order for Second Reading read.


, after presenting a petition in favour of the Bill from the solicitors practising in Chancery, proceeded to express the gratification he felt at the circumstance of his Bill being approved of by the gentlemen whose petition he had just presented. A measure which obtained the approval of those through whose instrumentality it was to be carried into effect, was the more likely to be worked to a beneficial end. The conduct of the solicitors in Chancery, in petitioning in favour of the measure, was a proof that the imputation frequently cast upon them of being unwilling to concur in reforming the practice of the court, lest their interests should thereby be injuriously affected, was altogether unfounded. It was not without considerable hesitation he had ventured to introduce a measure for diminishing delay and expense in the Court of Chancery, for no one was more sensible than he was of the great difficulty of dealing with the subject. The consideration which he had found it necessary to bestow upon the details of practice in the preparation of this measure, had convinced him of the absolute necessity of proceeding with the most scrupulous care. In many instances, whilst proceeding in the execution of the task he had proposed to himself, it had become apparent to him that the evils resulting from some of the regulations which had originally suggested themselves to his mind, would have been greater than the evils they were intended to remedy. Another consideration influenced his determination to proceed with the utmost caution, namely, the enormous amount of the property subject to the jurisdiction of the Court of Chancery, and the great danger which would arise from any incautious disturbance of that jurisdiction. The control of the Court was by no means limited to the funds vested in the hands of the Accountant General; it extended to all personal property vested in trustees of every description, and it was probably not saying too much to affirm, that as much as half the personal property of the kingdom, as well as a large portion of real property, came under the jurisdiction of the Court of Chancery. It was no light thing to create disturbance in the administration of such a mass of property. There were other considerations which had induced him to doubt whether he should be justified in bringing forward the measure now before the House. He looked back to the many able and experienced men connected with the Court of Chancery who had preceded him in that House, and who were most desirous of accomplishing reforms in the court in which they practised: among whom might be mentioned the father of the present Solicitor General, the late Sir John Leach, the Lord Chancellor himself, and the Chancellor of the Duchy of Cornwall. It might appear presumptuous in him to attempt that which the eminent men referred to had failed to accomplish. Nothing but a deep sense of an imperative public duty could have induced him to persevere in the task he had undertaken. It had fallen to his lot to see so much property wasted in inquiries in the Court of Chancery—to behold so many families utterly ruined in consequence of the honest discharge of duty by some of their members, that he felt it to be an obligation which he owed to the House and the country to bring forward a measure for the remedy of these evils. In the first place, it might be desirable to explain why his Bill went no further. As the Bill was originally devised, it embraced a scheme both for preliminary proceedings and the working of suits in the Masters' Offices; and he had proceeded so far in the prosecution of the plan as actually to have had the clauses as to preliminary proceedings drawn, and the scheme for the Masters' Offices arranged, when it came to his knowledge that the Judges of the Court were preparing some orders to regulate the practice in those respects. It was his opinion that the Judges of the Court were the persons best fitted to effect reforms, and that by diligently applying themselves to the consideration of the subject they would be able to accomplish more in the way of the removal of evils and the saving of expense than could be accomplished by the enactments of any Act of Parliament. The moment, therefore, he became aware that the Judges of the Court were directing their attention to the preliminary proceedings, and the proceedings in the Masters' Office, he had communicated to them every thing which had occurred to him upon either blanch of the subject. The Judges had proceeded on their own plan, with reference possibly in some degree to his suggestions, and, in his judgment, they had produced a result which was, in many of its features, far superior to the scheme he originally formed. He hoped and believed that the new orders issued by the Judges in Chancery would lead to extremely beneficial results, and he felt happy in being able to state that already they had been so extensively adopted by the profession, that in the course of a few weeks no fewer than 120 claims had been entered under them. The Bill proceeded upon a new principle as regarded the practice of the Court of Chancery. Hitherto it had been the rule of the court to administer complete justice in all cases in which it interfered. For instance, the court would not deal with a portion of property; it would have the whole property before it as well as all the parties in any way interested in it, although they might not be in any manner interested in the particular question which had brought the case under the jurisdiction of the court. The consequence of this endeavour on the part of the Court of Chancery to do complete justice was, that in many instances it incurred the opprobrium of doing injustice. The heavy expenses complained of in Chancery proceeding, chiefly resulted from this attempt to work out a perfect system of justice. Against this evil his Bill was mainly directed. It occurred to him that, in cases relating to the construction of a will, deed, or any other instrument, when all parties agreed, and were only desirous of obtaining the decision of the court, it would be most desirable to allow them to state a special case for the opinion of the court. By this means executors and trustees would be able to ascertain what the law was, and to act in accordance with it, without the necessity of involving the estate in an expensive suit. Take, for example, a simple case, that of a question arising as to the right to a share in a residuary estate. The claimant files a bill, and all persons interested in the estate, though having no interest whatever in the particular question, are made parties in the suit, and served with an order of the court. The suit comes on for hearing, and is then referred to the Masters' Office, where all the accounts are required to be taken, and a great expenditure of time and money takes place before a very simple point can be settled. The Bill proposed to get rid of all these preliminary inquiries and taking of accounts, and to enable parties in such cases to agree upon a special case to be at once filed in the Record and Writ Clerks' Office, and in regular course submitted to the court for its decision. The result of the change would be the avoidance of the inquiry in the Masters' Office, with all its concomitant expense and delay. Take another familiar example of the manner in which the Bill would work. A gentleman sells an estate to another, and a question arises about the title. Under these circumstances the course to be taken at present was for one party to file a bill, to which the other put in an answer; the case is then heard by the court, and referred to the Master's Office; the Master investigates the title, and finally reports upon it. Here was a series of separate proceedings attended with heavy expense, which would at once be got rid of by enabling the parties to submit a special case to the court. This was a change which could not be effected by the authority of the Judges alone, because an Act of Parliament was necessary to indemnify executors and trustees; and, accordingly, the Bill enacted that any executor, administrator, trustee, or other person making any payment, or doing any act in conformity with the declaration contained in a decree made upon a special case, should be as fully protected and indemnified by such declaration as if the payment had been made or act done in pursuance of an express order of the court made in a suit between the same parties instituted by bill. Another branch of the Bill was framed with the view of relieving executors from a grievous evil to which they were exposed in the present state of the law. A man dies leaving a certain amount of property; the executor pays the deceased's debts, and then distributes amongst the legatees the money to which they are entitled under the will; but he is not protected against future claims. Cases were known in which, after the lapse of twenty, thirty, and forty years, individuals have come forward and instituted suits against executors for debts due from the testator when the executors had parted with every shilling of the assets. In one such instance an executor was proceeded against by a creditor to the estate after the lapse of twenty years, and the executor was made liable for 20,000l. Years after the death of a testator, a suit might be instituted by a party charging the deceased with having been guilty of a breach of trust, and claiming to have the amount due from him ascertained, and paid by the executor, although in the honest discharge of his duty he had already paid away all the sums which had come into his hands. In order to provide a remedy for this grievance, an executor must, under the present state of the law, procure some person to file a bill who was interested in the estate of the testator, upon which a decree would be made, referring it to the Master to take an account of the testator's property, and to call the creditors in; and when that was done, a decree would be made ordering the legacies to be paid, which decree would be a protection to the executor. It was by these means the Court of Chancery had endeavoured to apply a remedy to this evil; but the remedy was complicated, and by no means economical. In order to provide a better remedy, the Bill, after providing for the appropriation by the court of a sum of money to meet contingent liabilities, enacted by the 25th clause— That in case no debt or liability, or no debt or liability other than a contingent liability, shall have been allowed as aforesaid, or in case any debt or liability, other than as aforesaid, shall have been allowed as aforesaid, then after the same shall have been paid, or provided for by appropriation as aforesaid, all payments made by the executors, or administrators, or any of them, on account of the estate of the deceased person, and all dispositions of such assets made by them, or any of them, on account of such estate, shall, as against all persons having, or claiming to have, any demand upon such estate by reason of any debt or liability, other than persons who may have established under the said order any contingent liability for which no such appropriation as aforesaid may have been made, be as good and effectual as if the same had been made under a decree of the said court; provided always, that nothing herein contained shall in any manner affect or prejudice the rights of any creditor or other person having any demand or claim upon the estate of the deceased, against any assets so paid or disposed of, or against the persons to whom such payment or disposition may have been made, or against any assets appropriated under the provisions of this Act, and the appropriation of which, if made under a decree of the said court in a suit to which he was not a party, would not have been binding upon him. The Bill touched upon other points of practice, which it would be difficult to render intelligible to the House, and therefore he would content himself with stating generally, that it gave power to the court to hear applications which by the 3rd and 4th of William IV., c. 94, were directed to be heard only by a Master—that it provided for exceptions for scandal, impertinence, and insufficiency, being heard by the court, instead of being referred to the Master—and that it empowered the court to receive proof by affidavit in certain cases, and to make general rules and orders, which were to be laid before Parliament, and to be binding from the making, unless objected to by the vote of either House. He had not presumed to bring forward this measure without communicating with the Judges who administered that branch of the law to which it referred; on the contrary, he had felt it to be his duty to lay a copy of the Bill before each of those learned persons, and he had no reason to think that any one of them dissented from its provisions. From Vice-Chancellor Bruce, with whose learning and talents the House was well acquainted, and who administered a large portion of equity business with distinguished ability, he had received the most unqualified approbation of the measure. The measure had also met with the full approval of the Master of the Rolls, than whom no Judge was more active in the discharge of his duties, or more anxious for the adoption of safe reforms; and the Lord Chancellor, after having gone through the Bill with the utmost attention and care, had approved of it. He (Mr. Turner) felt honoured in being permitted to inform the House that the principal clauses of the Bill had obtained his Lordship's full concurrence. He could not mention the name of that noble and learned Lord without assuring the House of his firm belief that a strong disposition existed on the part of the noble and learned Lord to set matters right so far as depended on his efforts. If the noble and learned Lord needed any testimony whatever to the manner in which he had performed the duties intrusted to his charge, the House might allow its attention to be directed to what were the duties which devolved on the Lord Chancellor, what was the enormous burden of his administrative functions, and what was the enormous amount of labour involved in the due discharge of those functions; although saddled with these burdens, the noble and learned Lord had most carefully performed his judicial duties; and nobody could venture to deny that seldom had the high office of Lord Chancellor been conferred on a person more fitted to adorn that station than on the noble and learned Lord, who for a series of years, down to the present moment, had filled that office with most admirable zeal, diligence, assiduity, and learning.

Motion made, and Question proposed, "That the Bill be now read a Second Time."


said, that he did not intend to offer any opposition to the second reading of the Bill. It was almost unnecessary for him to assure his hon. and learned Friend that he concurred entirely in the objects which were sought to be attained by this Bill, having made some slight endeavour himself to carry into effect a measure in a similar direction which had already received the sanction of the House, and gone to the other House of Parliament. In that measure he proposed a mode of taking the opinion of the Court of Chancery upon a special case without rendering it necessary to file a Bill; and he begged to call the attention of his hon. and learned Friend to some points which he thought of importance, and which led him to suggest a doubt whether his hon. and learned Friend, influenced by considerations of caution, had carried the provisions of the Bill quite as far as they might be usefully carried. He should endeavour shortly to explain what he meant. The provisions introduced with reference to the opening of a special case were made, in point of fact, principally to bear on the construction and meaning of certain words to be found in some deed or other instrument. It was a matter of fact that many persons were interested in the construction of such deed or instrument who could not by possibility exercise a judgment with respect to the course to be pursued in obtaining enforcement of their own rights. In a question involving the construction of a will relating to real estate given to a father during his life, and afterwards to his children, whether it conferred the estate as only in tail, or only for life, with an interest at once vested in his children, it was manifest that his child had an interest. If that infant were a few months old, it would be entitled under the Bill to appear and have the cause discussed before the Court of Chancery. In that case, it was manifest that proceedings would be taken for the purpose of seeing the interests of the child duly represented, and counsel heard, with the view of suggesting the various arguments by which the rights of the infant might be supported. But if the case should be that the man to whom the will related had no child born at all; in that case this Bill would not allow the construction of the will to be ascertained and determined, because there was no person then in existence whose interests would be involved to the extent of that infant. He felt that this was a difficulty of considerable magnitude. In the Bill which he had the honour of presenting to the House, it did appear to him that the interests of unborn persons in such a case as he had indicated deserved regard. His hon. and learned Friend proposed in his Bill that the remainder should be confined to those children who were alive as the successors of the party to the life estate. Suppose there was a child two months or even a week old, that child would have a right to have his case argued before the Court of Chancery; and no doubt proper care should he taken that the interests of all the children should be protected. But the case might be that the man who succeeded to the property had only been lately married, and had no children born, but there was every reasonable prospect that he would have some. His hon. and learned Friend, however, would not allow of such an interpretation of the will as would contemplate anything of this kind, for he proposed that no question should arise as to the children having an interest under the will who were not in existence at the time of the succession. It must be obvious to the House that children who were born so soon before the period he alluded to, could not have a much greater right in looking after their interests than the children who were born in the next or the immediately succeeeding years. He thought it would be better to leave it to the Court of Chancery to determine all questions of the kind, whether there were children a few months old, or whether there were no children at all. He thought this was a matter of importance; for if they did not allow any questions of interest on the part of those not in existence at the time of the succession to be brought before the court, trustees would often not be able to act in accordance with the provisions of the will. It was a matter of importance that a man should know whether he had, under certain circumstances, an estate in tail or only an estate for life. If an interest were contemplated in persons who were not in existence, the question could not be decided; and, although it might be the opinion of all the most eminent men in the profession that he had an estate in tail, and by a simple easy process might make himself owner of the whole property, he was fettered and tied down to an estate for life from the impossibility of meeting the conditions which were necessary to enable him to bring the case under the consideration of the Court of Chancery. He had mentioned another case with reference to the measure he had proposed, namely, to what extent it ought to be made to apply to persons having an interest in reversions. In the Bill he had introduced, and now before the other House, a discretion was given to the court upon hearing a case to determine to what extent it might find the interests of persons not in existence determinable; and he earnestly entreated his hon. and learned Friend to consider whether he might not with propriety extend the advantage of his measure, by making it apply to cases in which the interests of persons not in existence, of persons having a reversionary interest, might be brought before the Court of Chancery on questions being raised upon the construction of a deed. Whether the person was really in life or not did not in a matter of this sort seriously affect the question, and the argument of counsel for that particular interest must be as effectual and valid as the argument of counsel with reference to the interest of a child two or three years old. To that principle, therefore, he earnestly invited the attention of his hon. and learned Friend when the Bill should come to be considered in Committee. Assenting to what was proposed with respect to the mode of obtaining the decision of the court, he also fully approved of that part of the Bill which afforded protection to executors. It would be impossible to give them indemnity without incurring the preliminary expense of long, voluminous proceedings, to get the accounts passed. There was one point to which he wished to call attention, with reference to the careful and accurate detail by which the hon. and learned Member had endeavoured to work out the machinery of the Bill. He was somewhat apprehensive lest the powers given in his noble and learned Friend's Bill to make orders and regulations were not sufficiently strong to enable them to carry out the objects intended to be carried out. The proper distinction was, that those matters which were matters of principle should be specified clearly by Act of Parliament; but the mode of carrying them into effect, which related to the technical practice of the court, it was advisable to leave to the discretion of the court, which, with the assistance of its officers, might frame the necessary rules. If that course were followed, impediments would be avoided which had occurred in various cases, but could not have been foreseen, from introducing provisions affecting technical practice. The hon. and learned Gentleman had seen the necessity of giving the Court of Chancery power to make rules and orders under the Bill. These were to have the effect of an Act of Parliament. Although the machinery was admirably well adapted for the purposes of the Bill, sufficient power did not seem given to the court to alter the rules and orders. With respect to exceptions for scandal, &c., the decisions by a Master in Chancery were insufficient; his own private opinion concurred with that of his hon. and learned Friend; and he thought the proposed change beneficial. The tendency of late years was to make the Masters' Office more effective. A return which had been made on the Motion of the hon. and learned Member for the city of Oxford showed the vast extent of the incumbrances there, and the necessity that some steps should be taken, either by Parliament or otherwise, for expediting business. All persons admitted a remedy must be applied. In conclusion, he should only make one observation with reference to the diffidence the hon. and learned Gentleman felt in undertaking such a measure as the present, while so many eminent Members of Parliament connected with the profession had projected in vain considerable reforms in the Court of Chancery. The hon. and learned Member would permit him to observe, that if any of those eminent individuals had attempted to effect the object when they sat in that House, it would have been simply useless. It was impossible for them to carry reforms which were now so easy of accomplishment if the manner of carrying them practically into effect could be pointed out to the House. It was gratifying that the hon. and learned Gentleman, having prepared this measure with care, and proposed in it fairness and sincerity, should have been led to turn his attention to the subject; and with respect to any reform he (the Solicitor General) had attempted in the same direction, he had to thank the hon. and learned Member for the assistance he had rendered.


agreed with his hon. and learned Friend the Solicitor General in thinking that it was owing to public attention having recently been so much directed to the abuses in the Court of Chancery that they now had obtained the means of carrying out reforms in that court. He wished, however, to direct the attention of hon. Members to a return just laid on the table, which he feared had not received that attention which it deserved. From this document it appeared that there were 1,947 cases in the Masters' Offices. When these cases were brought forward, it was necessary to obtain a warrant for hearing, which warrant only lasted for an hour, unless under very extraordinary circumstances, when it extended to two hours. When a counsel in a case had obtained a warrant, he was expected to open his case in a portion of this time. A second warrant for rehearing could not be obtained for the space of six weeks, and then he had to remind the Masters of what he had said before, and then to get through his case. Another six weeks must then elapse before the barrister on the other side could be heard. He would refer the House to the return on the table, as to the number of warrants which were taken out in each case. There was one case alluded to in this return which came before the court in 1825, in which not less than 888 warrants had been taken out. In another case—the Attorney General v. Tufnell, who he hoped was not his hon. Friend the Member for Devonport, which came before the court in 1833–164 warrants had been taken out. In another case the number was 273, in another 241, and in a third 221 warrants. If they took the average, it would be found that more than fifty warrants were taken out in each case; and when it was recollected that each warrant took six weeks to hear, the House would be enabled to form some estimate of the cause of delay. The House would see that this great advantage would be gained by the Bill of his hon. and learned Friend the Member for Coventry, that they need not go into the Master's Office at all, and they would get rid of those preliminary inquiries as to who were the parties interested in a case which every one knew before the suit was commenced. In conclusion, he had only to offer the tribute of his gratitude not only to the Lord Chancellor, for the excellent orders which he had lately issued, but also to his hon. and learned Friend for the steps which he proposed to take for the reform of the court.


wished to state that at that moment there were cases before the present Lord Chancellor which since 1847 had been declared ready for judgment, but upon which no further steps had been taken. He was sorry to hear that it was intended by the Lord Chancellor to give judgment on those cases without hearing any further argument, although such a period had elapsed since the cases were before him. He confessed that he thought the reforms should have commenced in the Court of Chancery itself, and not in the inferior courts. In 1848 he knew of a case of appeal which was brought before the Lord Chancellor, in which four aged persons were interested, against the Crown. It was strongly urged that judgment should be given with as little delay as possible after the case had been urged, as the parties might not survive. Nothing, however, was done. But these aged parties were now dead, and a new suit had to be instituted by their representatives. He trusted, whoever might be the successor to the present Lord Chancellor, that he would have more regard to the arrear of causes in the court by a vigorous change in the system.

Bill read 2°, and committed for Monday next.