§ Order for Committee read.
§ House in Committee; Mr. Bernal in the chair.
§ The ATTORNEY GENERAL moved a clause enacting that the deputy judge should not practise in districts while he acted as deputy. Clerks appointed after the passing of the Act should, he proposed, be compelled to reside in the district.
§ SIR J. GRAHAMsaid, it was hardly possible to discuss this Bill in Committee satisfactorily in the present chamber. As he stated yesterday, he heard everything from hon. Gentlemen opposite, but he could not hear a word of what was said by hon. Members who sat before him on the same side of the House. He said he wished to call the attention of the Government to the evidence given by Mr. Hagley, a competent officer of the Government, in a valuable report respecting the present state of the law for the recovery of small debts. The clause under discussion, in its present shape. Mould have a prospective operation. Now, under the existing Act the clerks of county courts were appointed by the Judges, with the sanction of the Lord Chancellor; and when once that sanction was given, it could not be withdrawn. The result was, that no direct power was possessed by the Government to remove a clerk, whatever might be his misconduct; and at present there were some of the clerks who resided out of their districts. This was an unsatisfactory state of things, and the evidence of Mr. Hagley was strong in favour of a power of removal being vested either in the Secretary of State or in the Lord Chancellor—he should prefer in the Secretary of State. There was no doubt that the country had pronounced very decidedly in favour of the extension of the jurisdiction of the county courts. He would admit that there were some doubts whether the extension would be found to work so well as had been anticipated; but the opinion was so strong in favour of the present Bill, that he thought 1163 it would be better to extend the jurisdiction of these courts. But it would be most desirable that the present occasion should be taken to remove every defect in the Working of the Act. The Secretary of State for the Home Department had, he believed, appointed a commission consisting of five county court judges; and he was confident that the Government would avail themselves of the opportunity to apply a corrective to the defects of the existing law. One more defect pointed out by Mr. Hagley was respecting the doubtful state in which the existing law left the power to use existing courts for the sittings of county court judges; and he (Sir J. Graham) thought it advisable to take powers providing that wherever there were existing courts they should be available for the purposes of this Act, provided any damage that might be done to the buildings was repaired from the funds raised under the measure. With regard to the clause before the Committee, he thought it ought to have a retroactive as well as a prospective operation.
§ SIR G. GREYagreed with his right hon. Friend that it would be desirable to be able to remove clerks in cases of misconduct. He should be prepared to carry out the recommendations of the committee of county court judges so far as they might appear calculated to improve the law and practice of the courts.
§ Clause, as amended, agreed to.
The ATTORNEY GENERALhad next a clause enacting that summonses and orders Might be served by parties or their agents. Such a clause had been very generally demanded, and he had prepared one in which he had endeavoured to carry out the wishes of those parties. But he had since received so many representations of the difficulty and danger of admitting such a principle, that he had great doubts whether the House ought to agree to the clause. It seemed hard, upon the one hand, that parties should be compelled, at some expense, to employ others to do what they were able and willing to do for themselves. But remembering, on the other hand, that the due service of the summons was the foundation of the jurisdiction of the court, and that the courts would be liable to be imposed upon if plaintiffs were to be allowed to serve their own summonses, he was inclined to think that it would be better that some additional expense should be incurred than that the courts should be exposed to the 1164 difficulty of a disputed jurisdiction, which might be the consequence of allowing parties to serve their own summonses. With the leave of the House, he therefore proposed to withdraw the clause.
§ Clause withdrawn.
§ SIR G. PECHELLsaid, that hon. Members near him were labouring under this disadvantage—that they could not hear one word. There was something in the clause to enable parties to serve their own summonses. [The ATTORNEY GENERAL: I have withdrawn it.] He had not heard anything about it; but if the hon. and learned Gentleman did intend to persevere in moving the clause—[An Hon. MEMBER: It is withdrawn.] If the hon. and learned Gentleman had only spoken loud enough, he might have heard that the clause was withdrawn; but he could hear nothing about it.
The ATTORNEY GENERALcould assure the hon. and gallant Member that he had spoken at the top of his voice, and, if the Chairman would acquit him of disrespect, he would turn round and repeat to the hon. Member what he had said.
§ MR. HUMEwould really suggest to the Committee whether they had better not retire to the other House. Except the speech of the right hon. Baronet the Member for Ripon, he had not been able to hear one word.
§ MR. GOULBURNThe reason was because the Committee expected to hear something worth hearing from his right hon. Friend, and accordingly they had listened.
§ SIR J. GRAHAMsaid, it was more important that the Committee should be able to hear what fell from the Government than anything he could say. He could assure the House that it was impossible for hon. Members to hear what was said by those who were seated before them. In a debate that might not be inconvenient, but in Committee it was exceedingly so.
§ MR. STAFFORDhad been sitting on the Ministerial side, and had been straining to hear what was going on. He had, however, been compelled to cross over to the Opposition bench in order to listen to the Members of the Government.
The ATTORNEY GENERALsaid, the next clause he had to propose was one of considerable importance. At present, if a person laid a plaint, and served it on a defendant, even though the latter made no defence, the plaintiff was obliged to go to the court with all his witnesses and incur 1165 all the expense of proving his debt. Now, his object in the present clause was, that whether the defendant was served or not, if he knew that a suit was about to be instituted, he might agree with the plaintiff about the debt, and enter an agreement in writing of the amount of the debt with the clerk of the court; and on such being done the judge might adjudicate upon the case in the same manner as if he had tried it in the ordinary way in court.
§ Clause agreed to.
The ATTORNEY GENERALsaid, the object of the next clause he had to propose was to save expense in the summoning of juries. It was to the effect that, instead of high sheriffs and bailiffs, as at present, furnishing a list of jurors, for which a fee of twopence a folio was paid, the clerk of each county court should select a jury, when required, from a list of persons assessed for the poor at a rental of 20l.
§ Clause agreed to.
The ATTORNEY GENERALsaid, he had another clause to propose, the object of which was to give the Treasury the power of ordering that judges, clerks, and ether officers should be paid by salaries instead of fees. At present a minute in Council was necessary for that purpose, but it was thought better to place the matter in the hands of the Treasury.
§ Clause agreed to.
The ATTORNEY GENERALthen proposed a clause vesting the power of appointing and dismissing the necessary servants of the courts and offices in the Commissioners of the Treasury.
§ MR. AGLIONBYthought care should be taken to have such persons appointed to those offices as would be really competent for the duties, and that the evil of having too small salaries, which would lead to the appointment of unfit persons, should be avoided. These places, he thought, should be under the control and direction of the district clerks.
§ SIR G. GREYsaid, it was proposed to give the power of appointment and dismissal to the Treasury in cases where there was any neglect of duty; and the same power could be exercised in the case of those persons who were found incapable.
§ Clause agreed to.
The ATTORNEY GENERALthen proposed a clause providing that town-halls and court-houses shall be used free of rent-charge for the sittings of county courts.
§ MR. HENLEYthought it possible that under this clause county business might 1166 occasionally be interfered with. It was stated that the courts were not to interfere with the business "usually transacted" in the town-hall or court-house; but it might be necessary to hold courts not at the usual times, and in that case the county magistrates might be excluded from their own buildings.
The ATTORNEY GENERALsaid, the spirit of the clause was completely opposed to the occurrence of any such contingency. Of course, such arrangements would be made by all parties as would obviate any inconvenience.
§ SIR G. PECHELLwished to say once more that he could not hear one Word that was said. The conversation going on among a few Gentlemen was quite confidential. He wished to know if the existing settlements regarding town-halls were to be continued?
§ MR. CARDWELLsaid, this clause had been brought in at his request, and it was certainly intended to save all existing contracts.
§ Clause agreed to.
§ MR. MITCHELL moved a clause to the effect that nothing oontained in the Bill should take away the power of the Judges of the superior courts to make order for holding defendants to bail in actions commenced in the superior courts for claims not exceeding 50l., and that when in any action any such order should remain, the provisions of the Act should not apply with respect to such action.
§ Clause agreed to.
§
MR. TORRENSM'CULLAGH moved—
And be it enacted, that the court shall, after the first day on which it shall sit in each district or place, commence its sittings not later than nine of the clock in the forenoon, save when prevented by the illness or unavoidable absence of the judge appointed to preside in such court; and that no trial, case, or business shall be entered upon after the hour of six of the clock in the afternoon of any day by such court, except at the request of both parties.
The ATTORNEY GENERALobjected to the clause, as the matter was under the consideration of the Committee of County Court Judges.
§ LORD D. STUARTopposed the clause, the enactment of which might be attended with great practical inconvenience; for instance, the judges might be obliged to stop in town till the following day, and the witnesses on both sides in the case, together with the plaintiff and defendant, because the clause of the hon. Gentleman would not permit the court to sit after six o'clock.
§ MR. T. M'CULLAGHsaid, the strongest representations had been made to him on this subject, and he had been informed that cases had occurred of some of the county courts in England sitting until after midnight. He would not, however, press the clause after the objection of the learned Attorney General.
§ Clause withdrawn.
§ MR. CROWDER moved the adoption of a clause of which he had given notice, for the purpose of conferring the right of appeal. The hon. and gallant Gentleman the Member for Lewes, when he introduced the Bill, had in it an appeal clause, and with that clause the Bill was discussed on the first and second reading. In this shape the Bill remained until it reached Committee, when himself and his hon. and learned Friend the Member for Southampton objected to the peculiar nature of that appeal clause. It was stated by them, and by others, that the provision would be altogether inefficient for its purpose, and it was urged that it was not judicious that there should be an appeal for the defendant and none for the plaintiff, who, in case he was nonsuited or defeated, had no redress. Upon that occasion it was submitted that the appeal clause should be withdrawn, and his hon. and learned Friend the Member for Southampton promised that he would prepare certain appeal clauses. He (Mr. Crowder) had made the same promise, and had fulfilled it, but, to his great surprise, learned a few days ago that it was the intention of the hon. and learned Attorney General, and other influential Members, to oppose the appeal clauses altogether. Let it be remembered that one of the most important grounds upon which the 50l. extension was opposed by the hon. and learned Attorney General and the right hon. Home Secretary was, that the character of those courts would be lost, and the object of their formation in a great measure defeated, by conceding the power of appeal, which would, they said, be necessary if their jurisdiction were extended to 50l.; and they added, that the appeals would be attended with delay and expense. But at that time it was never supposed by any human being that if the jurisdiction were extended from 20l. to 50l., and if they were to give the inferior judges of those courts such important jurisdiction, that their decision should be absolute, and that, unlike the highest Judge in the land, from the decision of one of them there should be no appeal. He put it to the common sense 1168 of hon. Members whether there ought to exist in this country such tribunals, without the power of appeal from their decisions. He was told that the hon. and learned Attorney General intended to oppose those clauses; and the reason, he believed, alleged by the Government for this course was, that it was their desire to render this Bill as similar as possible to that measure which it was meant to extend. But let him ask the House how the Bill would have been received if it had been in the first instance proposed to give a 50l. jurisdiction without an appeal. The House would have been shocked at the notion. Since then, he was well aware of what had passed out of doors, and that there was a determination to pass this measure. Believing that it must be adopted, he was most anxious to render it as little mischievous as possible, and he introduced these clauses to give efficiency to its operation. It was on the suggestion of the Common Law Commission that sat in 1833, those county courts were established, and he found the commissioners in their report adverting to the absolute necessity, if Parliament appointed sixty different judges in the country, of having power, if necessary, to rectify their decisions. In 1841, Sir E. Sugden, referring to the extension of the jurisdiction of the county courts, stated that two things were necessary to give to these courts a proper check: a vigilant and independent bar, and a court of appeal. Without a power of appeal over the jurisdiction of the county courts, law would become a lottery, and the most conflicting decisions would be constantly taking place, He had been informed that in three of the metropolitan districts, decisions of the most contradictory character had been given by the judges. In the court of one of these districts a decision of the Court of Exchequer was referred to by the counsel for the plaintiff, and the judge said that he would be bound in his judgment by that decision; while in the adjoining district the same decision was overruled by the judge; and in the third the judge stated that he had nothing to do with the decision of the Court Exchequer, and should decide the matter according to his own discretion. And why should they not all do so? They were possessed of an irresponsible power, hitherto perfectly unknown to the English law. He believed that the surest way to destroy the efficacy of the measure, and to raise the feeling of the country as much against as it was now in favour of it, 1169 would be by passing the Bill in its present state. He admitted that some delay would necessarily take place by granting the power of appeal; but in framing the clause which he intended to propose, he had endeavoured to provide as far as possible against any unnecessary delay.
§ Clause brought up, and read 1°.
§ Motion made, and Question put, "That the Clause be now read a Second Time."
MR. FITZROYunderstood the hon. and learned Gentleman the Attorney General intended to oppose this clause; but he wished to say that the hon. and learned Member for Liskeard had rather misstated the facts as to the appeal clause in the Bill originally. He (Mr. Fitzroy) himself had always been opposed to the appeal, and had only introduced the clause in deference to what he understood to have been the express wish of the right hon. Gentleman the Home Secretary and the hon. and learned Attorney General. He considered the adoption of the clause now proposed would be extremely objectionable.
§ SIR G. GREYdisclaimed having expressed any wish that an appeal clause should be introduced. He had objected to the introduction of the Bill itself, as he thought they were running the risk of depriving these courts of the character which made them popular. He had, on a former occasion, stated that the sum of 20l. had been taken as the limit in the existing Act, because that was the amount within which no new trial was allowed, and he then stated his fear that if the amount was extended to 50l., as this Bill proposed, it would open the question of appeal; but, as the House had decided upon the extension to 50l., his desire still was to retain as much as possible the distinctive character of those courts, and therefore, he should oppose this clause.
§ MR. AGLIONBYbelieved that the addition of this clause would render the Bill distasteful to the whole country, and make it a curse instead of a blessing. The right of appeal as to matters of fact might induce many judges to throw off their proper responsibility. He knew no form of tribunal so satisfactory as the arbitration of a single barrister of eminence; it was on that ground that he was in favour of the Bill without appeal. For his own part he would rather have a decision pronounced against him than be subjected to an appeal.
The ATTORNEY GENERALmust oppose the introduction of this clause. The object of establishing these courts was to 1170 have the matter in dispute summarily, cheaply, and, if possible, satisfactorily decided; and though he had been opposed to the extension of the jurisdiction to 50l., the House having decided in favour it, he felt it to be his duty to assist in passing the measure as proposed. The introduction of this clause would be a serious evil, inasmuch as it would destroy the efficacy and the general operation of the court. He was also opposed to the clause because the appeal, not including cases of 20l., would draw a line between the rich and the poor, which would tend to damage the character of the courts, and shake the public confidence in them.
§ MR. COCKBURNbelieved an appeal to be absolutely necessary. There was no Member of the House who was a more cordial supporter of the principle of the measure than he was. He was in favour of localising the administration of justice, and hoped to see these courts gradually absorb the legal business of the country; but in order to the beneficial working of the Bill, there must be an appeal from the decisions of the judges to some superior court. He had never yet seen a judge, however exalted he might be in ability and intelligence, upon whom the consciousness of being subjected to superintending control did not act salutarily; and he believed that these sixty judges needed such control. It must be recollected that they would not have the same check from the bar and the press as the superior courts, and unless they were operated upon by the consciousness of there being an appeal from their decisions, their decisions would be contradictory, and there would be a confused administration of the law. No other judge, not even the Lord Chancellor, was exempt from appeal. He admitted that the object of the Bill was to secure summary, speedy, and cheap justice; but when the jurisdiction should be extended to 50l., a new class of business would be introduced, involving important principles of law, and without an appeal the decisions could scarcely be otherwise than conflicting, seeing that the judges would not have the same reason for keeping up their legal knowledge as the judges of the superior courts. Let it be recollected that the Bill would have to go before the other House of Parliament, where they had heard it was likely to meet with considerable opposition. Unless they provided for an appeal to the superior courts, there might be considerable hostility in the other House; 1171 and, if only because he was anxious for the ultimate success of the measure, he should support the proposed addition.
§ SIR J. GRAHAMsaid, he, too, was very anxious for the Success of the measure; but he would not prognosticate as to the fate of the Bill in the other House. He was extremely glad that Her Majesty's Government had adopted the course which they had done that evening, that of endeavouring to perfect the Bill as far as possible, so as to meet the reasonable expectations of the great body of the people. He was unable to combat the arguments urged with his accustomed force by the hon. and learned Member for Southampton. He admitted that it might have been desirable to wait longer, in order to see what had been the exact working of the County Court Act. He also admitted, that amongst sixty judges they could not expect uniformity of decision, and that from the very constitution of these courts there could not be such a check on the conduct of the judges as existed in the superior courts. But the two hon. and learned Gentlemen who had just spoken, even though they might argue with the wisdom of Solon, shared a misfortune which had befallen greater persons, and their arguments were liable to the objection which was expressed in two words, "too late." It was the opinion of the people of this country, that in the superior courts of law, what with delay of process, and what with the great expense attending an application to them, justice was too dear; and that they must have a more summary and ready process. He was afraid that the justice which was about to be placed at their disposal, though cheap, would be imperfect as compared with that which they were accustomed to receive at the hands of the Judges of this country. He also entertained some fears as to the indirect effect of this measure in relation to the bar of Westminster Hall—a body of men which he considered to be one of the greatest ornaments of the country, and to whom it was under eternal obligations. If such was the effect, he should regret it. Still the judgment of the people of this country had gone forth. They said, that the course of proceedings in the superior courts with reference to debts of 50l. was so extravagantly dear that it amounted practically to a denial of justice, and they demanded that a further experiment should be tried. If he was right in reference to the state of the public mind on this question—and 1172 he believed he was perfectly right—by granting an appeal they would violate public opinion on this subject, for they would thus perpetuate all the delay and expense of the present proceedings in the superior courts. He was extremely glad Her Majesty's Government had taken the step which they had done with regard to the investigation of the cost of proceedings in the superior courts. He considered that step a wise one, and wished that it had been taken sooner, either by the Government or their predecessors in office. Late reforms were always dangerous; but he was glad that a remedy was about to be applied, even though it were late, to what required remedying in those courts. It was the earnest and the legitimate desire of the people of this country, with regard to debts of moderate amount, to have cheap and ready justice at their own doors; and though he thought the clause proposed had been both framed and supported in the right spirit, and although he could not satisfactorily answer the arguments urged for it in the abstract, he felt bound to say that he thought the House would not correctly represent the opinions of the country by sanctioning it.
§ SIR R. H. INGLISsaid, however right it might be to desire cheap, speedy, and summary justice, certain justice was not less important; and he could not help fearing that the decisions of the sixty county court judges would be found as conflicting as those of Election Committees were formerly, when no person could anticipate the decision of the Committee except by looking at its constitution. He had no wish to impede the progress of the Bill; on the contrary, he aimed at making it perfect, and for that reason he should vote for the additional clause.
§ MR. J. S. WORTLEYdoubted whether those were the best friends of the measure who resisted the proposed addition. It was his firm conviction that if the Bill were passed without including the right of appeal, the county courts would become as remarkable for their unpopularity as they now were for their popularity. The expense of the proposed appeal would be comparatively trifling, not exceeding that of an appeal to the quarter-sessions. In Scotland there was in the ease of debts exceeding 10l. a right of appeal to the Court of Session, and there it worked satisfactorily.
COLONEL THOMPSONwould excuse himself for interfering, by stating that he 1173 acted chiefly under authority and advice. But, on his own unaided judgment, he hoped he might without profanity, say, "The Lord deliver us from summary jurisdiction! "for certainly it was not necessary to look far, to see good reason for that prayer. Nobody would persuade him that there was any cry in the country, "Cheap law and bad!" And he had heard no answer to the principal argument of the learned advocates for the clause, which was, that judges decided better when there was an appeal hanging over their heads than not. For these reasons he must support the clause.
§ MR. J. EVANSopposed the clause. He was about to argue a case in the new trial paper in the Queen's Bench, which was a year old; and he had frequently had to argue country new trials after they had been a year and a half or two years in the paper, when he had forgotten all about them. There would be no end of appeals if his hon. and learned Friend's proposition were acceded to, and the business of the Superior courts must necessarily fall into arrear.
MR. CROWTHERsaid, that the arguments of the right hon. Gentleman the Member for Ripon had failed to convince him of the propriety of passing this Bill without the appeal clause. The House was legislating, not for the moment, but for a continuance, and it would be a strong piece of legislation to pass this Bill without giving an appeal from the judges of the county court, when an appeal had always been allowed from judges selected from the very first ranks of the bar. With regard to the observation made by his hon. and learned Friend the Member for Haverford west, there might be some arrear in the business of the Queen's Bench, but in the Exchequer and Common Fleas there were no arrears at all.
§ The Committee divided:—Ayes 27; Noes 108: Majority 83.
| List of the AYES. | |
| Adderley, C. B. | M'Cullagh, W. T. |
| Barrington, Visct. | Napier, J. |
| Best, J. | Patten, J. W. |
| Bremridge, R. | Portal, M. |
| Brotherton, J. | Stansfield, W. R. C. |
| Chatterton, Col. | Strickland, Sir. G. |
| Davies, D. A. S. | Thompson, Col. |
| Denison, E. | Townley, R. G. |
| Floyer, J. | Vivian, J. E. |
| Granger, T. C. | Westhead, J. P. B. |
| Halford, Sir H. | Wortley, rt. hon. J. S. |
| Hamilton, Lord C. | TELLERS. |
| Hood, Sir A. | Crowder, R. B. |
| Inglis, Sir R. H. | Cockburn, A. J. |
§ House resumed.
1174§ Bill reported; as amended, to be considered on Tuesday nest.