COUNTY COURTS FURTHER EXTENSION BILL. (Hansard, 1 July 1851)

MR. FITZROY
proposed an Amendment to the effect that the several Judges of the County Courts in their respective districts, and the Commissioners of the Court of Bankruptcy, and officers of the said courts respectively, should for the purposes of this Act be officers and assistants of the Court of Chancery.

§ SIR GEORGE GREY
said, that the Clause as it stood invested the Lord Chancellor with the power of making a selection of the Judges of the County Courts for the purpose of the Act; but the effect of the Amendment would be to set aside that discretion; he could not consent to such a proposal.

MR. FITZROY
said, his Amendment simply went to make it competent for the Judges named in it to undertake the business to which the measure related, and still left to the Lord Chancellor the power of sending or of not sending such business before any particular Judge.

§ MR. G. A. HAMILTON
moved additions to the Clause, with the view of extending its operation to Ireland. He intended to move alterations in other parts of the Bill, to effect the same object.

§ SIR GEORGE GREY
said, the present Bill had been drawn up specially to amend and extend the provisions of Acts relating to the County Courts in England, and as the measure had no reference whatever to Ireland, he trusted the Amendment would not be pressed.

§ MR. HENLEY
complained that the Bill afforded no security that the business would be transacted in these courts in a manner more conducive to the public interest than was at present done in the Masters' Offices. The County Courts, he willingly admitted, 23 were excellent institutions in themselves; but when the Bill did not contain any compulsory provision for the transaction of the business in public, he was afraid that the object of securing its transaction in a satisfactory manner would not be accomplished.

The SOLICITOR GENERAL
admitted that there was no direct provision in the Bill for securing the transaction of the business in public. The hon. Gentleman (Mr. Henley) must be aware that a Commission was sitting for the purpose of revising the whole of these matters, and the state of the Masters' Offices would occupy no small portion of their consideration. The scheme of the Bill was to enable the Lord Chancellor to carry out inquiries in the country in the same way as they were carried out in town, and subject to all the improvements which before another Session passed, would, he expected, be adopted in reference to inquiries in town. With respect to the transaction of the business in public, there might be inconvenience in making a general rule to that effect, as there was occasionally business transacted, such as that relating to infants' estates and the appointment of guardians, in which the public generally had not the slightest interest, and the public transaction of which might not be productive of advantage. With respect to the whole subject, the Lord Chancellor was most anxious that it should be taken up by the Commissioners, with the intention of fully carrying out equity reform.

§ MR. MULLINGS
said, that much benefit might accrue from a reference of all matters in dispute to the Judge of the County Court, who could take evidence and have the books and the parties before him. At present, however, the Judge could not ask any question which was not in the interrogatories. A more unsatisfactory method of administering justice than this could not well be imagined. He believed it would be impossible to have justice properly administered in the County Courts if the Judges were not empowered to examine witnesses and have the parties he-fore them. He hoped there would be some correction of this evil. The Master's Office, as far as the taking of accounts was concerned, was the greatest curse in the country.

The SOLICITOR GENERAL
was aware that there were evils connected with the Masters' Offices, but they were endeavouring to remedy these as best they could. 24 No longer ago than Monday last he had laid on the table of the House an improved set of rules for the Court of the County Palatine of Lancaster. Those rules were framed by the Earl of Carlisle, with the sanction of Vice-Chancellor Knight Bruce, and authorised the examination of parties and witnesses orally when thought proper. With regard to the examination of parties and their books, the hon. Member (Mr. Mullings) must be aware that every decree of the Court of Chancery provided for the production of books. The Bill now under consideration gave the Lord Chancellor the power to direct the examination of witnesses orally, and also to direct the parties to attend with counsel or attorney, or by themselves, and to examine vivâ voce, and have the whole case taken down by the County Court Judge.

§ MR. HENLEY
said, they had some five or six nuisances in the shape of Masters' Offices at present in London, and were about to create fifty or sixty for the country at an expense of some 30,000l a year, without taking any guarantee that the business in them would be any better conducted. They took power by the Bill to increase the expenditure of County Court Judges, and how many more they would create he could not say. He was alarmed the other night when the hon. and learned Member for Aylesbury (Mr. Bethell) indicated no other amendment in the Court of Chancery besides handing over this business to the County Court Judges. He strongly objected to the powers in the Bill being only permissive, and not compulsory. He did not object to the County Court Judges, for they were a very praiseworthy body of men; but they had often seen Judges go wrong. The business was to be done in these courts exactly as in the Masters' Offices, and they were by this Bill giving a species of Parliamentary sanction to those abuses which had been so long complained of. They all knew that if any man living went into the Masters' Offices, he could not expect to get out again.

§ MR. E. B. DENISON
said, the hon. Member for Oxfordshire (Mr. Henley) had made a great many complaints, and the only suggestion he had offered was that the proceedings should take place in public. The adoption of that suggestion would, however, lead to considerable evil. The hon. Member might see the difficulty there was in introducing reforms on such a subject, and ought to be aware that it was best to proceed cautiously. Was it 25 fair to say they were introducing sixty nuisances over the country in place of six in London?

§ MR. HENLEY
had not attempted to introduce any amendment, but he had certainly said that there was nothing in the Bill to secure a better state of matters in future. Its powers were wholly permissive. It was the duty of Government to introduce a proper and satisfactory measure.

§ SIR GEORGE GREY
moved an Amendment, providing that the County Court Judges should not receive fees.

MR. FITZROY
objected to the manner in which they were treating the County Court Judges. They were throwing on them extra business, without providing them with adequate remuneration, thus rendering the offices such as men of ability would not retain. They had dealt quite in a different way with the Commissioners in bankruptcy. When the insolvency business had devolved on them, they had received an additional 500l. of salary for it. The business, however, had shortly afterwards been taken away from them, but they had been allowed to retain the additional salary. They had then thrown the business on the County Court Judges, and had not given them any extra remuneration, but had on the contrary taken 200l. a year from them. He could not but notice here the attack which had lately been made on the County Court Judges by a personage high in authority in another place. That attack had been of the most disgraceful character, considering that the party who made it had the appointment of the County Court Judges. It seemed that they were determined to disgust these men with their offices. A barrister of seven or ten years' practice would not take these offices if they limited the remuneration to 1,000l. a year. He protested against their dealing with gentlemen in so illiberal a spirit.

§ SIR GEORGE GREY
said, the hon. and gallant Member assumed that the Bill proposed to throw additional labour upon the Judges of the County Courts without giving them any additional remuneration; but such was not the fact. The Bill proposed to give them additional remuneration, which the Government had the power to award to them, if necessary. The 20th clause, as it came down from the other House, proposed that the Lord Chancellor 26 should have the power of fixing the salaries, with the consent of the Treasury; but it was not thought right that this power should be given to the Lord Chancellor alone, by whom these gentlemen were appointed. The Bill substituted a maximum of 1,500l. for one of 1,200l. for the Judges, and an increase for clerks in the same proportion. This proposal, however, to increase the maximum where necessary was not to be understood as holding out any approximation to a pledge or promise on the part of the Government that this maximum should be reached. The time of many of these Judges was not fully occupied, and it was, therefore, necessary to make a distinction. In taking power to increase the salaries, therefore, he was not giving the Judge the right to claim the increase.

MR. VERNON SMITH
hoped that the Bill would be reprinted. He had been listening to what had been going on for the last half-hour, and he had not the slightest conception what clauses were in the Bill, and what had been struck out.

§ MR. MULLINGS
said, he had a clause to propose which he trusted the Committee would agree to. The County Court Judges were at present obliged to sit every month during the year, and he proposed to allow them a month, during which they would be released from their duties. He begged to propose— That it shall be lawful for the Judge of any County Court, upon one calendar month's previous notice thereof, to be affixed in the office of such court, to direct, that for the space of one calendar month, to commence not earlier than the 10th day of August, and to terminate not later than the 24th day of October in any year, the office of such court shall be open for receiving money and issuing executions only.

§ SIR GEORGE GREY
did not see the necessity of such a clause, considering that the County Court Judges had the power of appointing a deputy, and there were always plenty of qualified deputies to be found. If the courts were shut up for a month during the course of the year, he was afraid it would detract materially from their value.

§ MR. MULLINGS
said, he would withdraw the clause for the present, but he would bring up a similar clause on some future stage of the Bill.

The ATTORNEY GENERAL
moved the following clause:— And whereas, by an Act passed in the tenth 27 year of the reign of Her present Majesty intituled, &c, it was enacted that no person should be entitled to appear for any other party to any proceeding in any of the said courts, 'unless he be an attorney of one of Her Majesty's superior courts of record, or a barrister-at-law instructed by such attorney on behalf of the party, or by leave of the Judge, any other person allowed by the Judge to appear instead of such party; but that no barrister, attorney, or other person, except by leave of the Judge, should be entitled to be heard to argue any question as counsel for any other person in any proceeding in any court holden under that Act,' be it enacted, that the said provision shall not be deemed or construed to apply to any case within the jurisdiction given to the said courts by this present Act, or by any other Act, other than the above partly recited Act; and that in all cases in which jurisdiction is given to the said courts by the present Act, or by any other Act other than the above partly recited Act, barristers-at-law and attorneys shall have and enjoy such rights and privileges as have been hitherto used and exercised by them respectively in the superior courts of common law at Westminster. The law as it stood at present prevented a barrister going into these courts, unless instructed by an attorney, and the consequence had been that attorneys practised in these courts as advocates, and received briefs from their brother attorneys. It would not, he thought, be considered a desirable thing that the Bar of England should be annihilated; and as there was every probability that these courts would ere long absorb the whole of the provincial business of the country, if they excluded the Bar from them, they would be inflicting a fatal blow on the Bar of England. He did not by any means wish to say any thing to the prejudice of the attorneys and solicitors, for he believed that the more respectable of them did not desire to encroach on the fair privileges of the Bar. He did not propose to alter the law as regarded the original Act in cases below 20l., but in matters above that amount he proposed to place attorneys and barristers in the same position in the County Courts which they occupied in the higher courts.

MR. FITZROY
said, the proposition in its present shape had taken him by surprise, for he had understood that it was to have been modified. In its present shape he should oppose it, for however important it might be to preserve the Bar, yet it could never be allowed to stand in the way of the public interest, which was the basis upon which both the original and present Bill was founded. His object in promoting the County Courts Act was to provide cheap justice to the people, and though he had been told that in some instances attor- 28 neys had conspired to exclude the Bar from practising in these courts, he could not help thinking that there was some mistake in the matter. He had been informed that on the Oxford circuit several members of the Bar had agreed to accompany the County Court Judge, and form a regular County Court Bar: he saw no reason why the example might not be followed in other parts. He saw no reason why parties should be compelled to employ barristers, whether it was their interest to do so or not. The matter ought to be left to the discretion of the suitor.

§ MR. P. H. HOWARD
thought they were not quite prepared for the partial exclusion of the attorneys and solicitors, who had been pleading in these courts, which was contemplated by the clause proposed. He hoped the clause would be postponed, in order that the opinions of all parties concerned might be ascertained. Without meaning any disrespect to hon. Members opposite, he could not see why the hon. and learned Attorney General, as an advocate of free trade, should not allow the suitors to appoint solicitors or barristers as they chose. They might fairly trust to the intelligence of the public in this age of advancement.

§ MR. MULLINGS
said, the effect of the clause would be to give pre-audience to the barrister. Now, suppose there should be only two barristers, and that both should be retained by one of the parties, the Judge must permit an attorney to appear. The object of the hon. and learned Attorney General was to get rid of that class of attorneys who now appeared, not representing the real parties, but taking briefs from other attorneys. If he understood the clause rightly, any attorney would be allowed to plead against a barrister when really employed by a client, and not through another attorney.

§ MR. J. EVANS
supported the clause, but hoped the hon. and learned Attorney General would strike out the latter part of it, which otherwise would have this effect, that if only two barristers attended a County Court, they must be employed to the exclusion of everybody else.

§ MR. WAKLEY
said, by this clause they were introducing into these courts a totally new principle of action. He did not see why they ought to restrict the choice of suitors with reference to the larger sums, while they were allowed a larger range of choice with regard to the smaller. In these courts they could not expect to find 29 more than three or four barristers, and whatever their talent or ignorance, parties would be compelled to make their selection from these three or four, while they might have an opportunity of selecting from hundreds of attorneys. He trusted this proposition would not receive the sanction of the Committee.

§ SIR GEORGE PECHELL
expressed his concurrence in the sentiments of the hon. Member (Mr. Wakley), and trusted that such a clause would not on any account be agreed to.

The ATTORNEY GENERAL
said, he saw great force in the observation of the hon. and learned Member for Haverfordwest (Mr. J. Evans), and was prepared to modify his clause so as to meet the suggestion of the hon. and learned Member. The only question was whether an attorney was to be allowed to intervene between a client and an advocate, and monopolise all the practice, or whether the Bar was entitled to a fair share of it.