HC Deb 11 June 1852 vol 122 cc530-9

Order for Committee read.

House in Committee.

Clause 1.

SIR HENRY WILLOUGHBY

moved that it be expunged. He believed that many persons conversant with the business of the Equity Courts, including the highest authority in them, were of opinion the course proposed would be inconvenient, that it would promote delay, and lead to expense in printing all bills and preliminary documents in the Court of Chancery.

The SOLICITOR GENERAL

opposed the omission of the clause, on the ground that the adoption of printing would both diminish inconvenience and save expense.

MR. BETHELL

expected that printing would put an end to that rambling form in which bills were too frequently now constructed, for every one knew that the appearance of matter in printing led to much greater accuracy of statement. The defendant, by the adoption of this provision, would be informed at the very first step in the suit of the charge which was made against him, and he would be informed of it in such a manner as would be apparent to a mind of the most ordinary capacity, without resorting to professional aid. Again, the Bill would be printed with probably greater celerity than a parchment copy could be prepared; and, instead of great expense, it would involve a less amount of cost. As to the probability of the exposure of private affairs by printing, he thought this was an idle objection. His only regret was, that this introduction of printing had not been carried throughout every stage of the clause. He trusted the Committee would be of opinion that the beneficial change proposed was one which would work well for all parties.

SIR HENRY WILLOUGHBY

said, that ordinarily not more than three copies of the bill were required; and in this case the printing would be much dearer than the engrossing. He should be glad to hear whether he stood alone in the Committee upon this question, because, in that case, he should not divide the House.

Clause agreed to; as was also Clause 2.

Clause 3 (providing that a defendant should be served with a printed bill in lieu of the writ of subpoena and summons),

MR. KEOGH

asked whether every defendant in a suit was to be served with an entire copy of the bill?

MR. WALPOLE

said, that one of the great improvements in this measure was that every defendant would have in a convenient form such a statement of the suit as should be legible and easily understood by him.

Clause agreed to; as was also Clause 4.

Clause 5 postponed. Clauses 6 to 11 inclusive, agreed to.

Clause 12 (requiring that in the absence of a near relative or testamentary guardian, the consent of the Court be required to the filing of a bill on behalf of an infant),

The MASTER OF THE ROLLS

moved its omission, stating it was often necessary to file a bill at a few hours' notice.

MR. WALPOLE

admitted that delay might arise in some instances, but yet thought the provision would be useful. Some power was required to prevent an improper person from being put in as next friend.

The SOLICITOR GENERAL

suggested that it might be sufficient to require the consent of the Court within some short time after the filing of the bill.

The MASTER OF THE ROLLS

conceived that this might in some measure meet the difficulty.

MR. BETHELL

thought the clause would be at once nugatory and obstructive. It would entail the necessity for that most objectionable and onerous proceeding an exparte application, which was altogether alien from the proper province of a judicial tribunal.

MR. WALPOLE

concurred to a great degree in those observations, and promised to consider them before the Report.

The MASTER OF THE ROLLS

suggested the postponement of the clause.

The ATTORNEY GENERAL

objected

SIR JAMES GRAHAM

said, this subject had been fully considered by the Commission, and there appeared to be between the retention and rejection of the clause a choice of difficulties. His own opinion, however, was in conformity with that of the Commissioners, that it ought to be omitted.

MR. HENLEY

observed that the Judges in the Court of Chancery were of a different opinion, with the exception of the Master of the Rolls.

SIR WILLIAM PAGE WOOD

said, as the father was usually dead, all the children infants, and the mother executrix and an accounting party in the suit, the application to the Court would be necessary in almost every case for the selection of a "next friend" to institute the suit.

MR. WALPOLE

ultimately, in deference to the opinion of the Commissioners, withdrew the clause.

Clause withdrawn. Clauses 13 to 1G agreed to.

Clause 17.

SIR HENRY WILLOUGHBY

moved an Amendment, to the effect that Motions should be set down in a certain order, and should not be called on out of that order, that the parties might know when their cases would be called on.

MR. WALPOLE

said, that the Amendment of his hon. Friend would apply to the present clause. If his hon. Friend knew as much of the Court of Chancery as he did, he would see that his Amendment would not at all answer.

The MASTER OF THE ROLLS

said, that the Amendment would fetter the discretion of the Judge. No matter how urgent the case might be, whether it was for an injunction to prevent the pulling down of a house, or any other case requiring speedy action, the Judge could not call it on if the Amendment were agreed to.

MR. S. CARTER

thought that the Amendment of the hon. Baronet was a valuable one, although the present might not be the proper clause on which it ought to be brought forward. Those who knew the Court of Chancery must be aware how difficult it was for the younger members of the bar to bring any Motion on.

Amendment withdrawn.

Clause agreed to; as were also Clauses 18 to 25 inclusive.

Clause 26.

The MASTER OF THE ROLLS

said, the effect of this clause would be, that the mode of taking evidence in the Court of Chancery would be entirely altered, and heavy additional duties be thrown on the examiners. A Committee which sat in 1833, relating to the salaries of officers of the Court of Chancery, recommended the reduction of the salaries of the examiners from 1,500l. to 1,000l. a year. That reduction took place; and if additional duties were now thrown on the examiners, a fair remuneration ought to be fixed.

MR. WALPOLE

said, no such provision could be made without previous notice. He quite agreed that the new mode of taking evidence would throw on the examiners more arduous and responsible duties than they had hitherto discharged; and, that being the case, it seemed unreasonable that the remuneration should remain the same. As the Bill stood, the chief clerk would receive 200l. a year more than the examiners.

Clause agreed to; as were also Clauses 27 and 28.

Clause 29.

MR. C. P. VILLIERS

called the attention of the Committee to the situation of examiners under the clause. It appeared that the old practice of hearing evidence by paid commissioners was to be abolished, and that that duty was now to he discharged by the examiners, who were officers of the Court. That would be a very great reform, as it appeared that these commissioners were often paid in a way that induced them unnecessarily to protract their sittings. But this new arrangement would add much to the labour of the examiners, and therefore he thought some provision ought to be made for their remuneration.

The SOLICITOR GENERAL

suggested that the examiners would not often be called upon to perform these duties; when they did they would, of course, be paid.

MR. BETHELL

differed from the Solicitor General, as he believed that these duties would often require to be discharged. He concurred with the hon. Member for Wolverhampton, that this would be a most important reform, and would save many hundreds of pounds to the suitors, as compared with the present practice; but with regard to remuneration, he thought the Lord Chancellor would have power under the 60th Clause to settle that question; or if there was any doubt of his power, it might be made plain when they came to that clause.

SIR JAMES GRAHAM

observed that the proposed alteration, which he supported, would throw great additional labour on the examiners; and a question would arise whether the two present examiners would be able to discharge those additional du- ties. It ought to be borne in mind, that, together with the additional labour which this measure would entail upon those functionaries, the nature of that labour being of a higher order, would require a greater exercise of the mind. He thought the question of the examiners' salary, under such circumstances, ought to receive a full and indulgent consideration whenever it was brought before the House. He confessed he was somewhat suprised when he heard it observed, with reference to the County Courts Bill, that the provision which gave to County Court Judges jurisdiction in matters of equity, was at variance with the provisions of this measure. He believed that, under these clauses, Bankruptcy Commissioners or County Court Judges might be employed in those examinations, and he could not conceive any refusal on their part to act as such. He thought the provision would be for the public benefit and convenience, as they were men conversant with the law, and acquainted with the mode of taking evidence. He looked forward to the time when, under the regulations of the Court of Chancery, county and local courts would be made auxiliary to inquiries of the nature proposed. He believed the clause a sound and useful one, and would give to it his support.

Clause agreed to.

Clause 30.

SIR ALEXANDER COCKBURN

suggested that the signature of a witness to his depositions should not be made imperative.

MR. BETHELL

also objected to the depositions being taken down in narrative form instead of in the usual way of question and answer. He thought at least the cross-examination ought to be taken down in that form.

The ATTORNEY GENERAL

thought there was weight in the objection of the hon. Member for Southampton, as the process of writing down question and answer would greatly delay the cross-examination, the questions in which, everybody knew, ought to be followed up as rapidly as possible.

SIR WILLIAM PAGE WOOD

said, that Mr. Walton, a master in one of the commons in law courts, had recommended, from experience, that evidence should be taken in the way suggested in the clause.

MR. C. P. VILLIERS

said, it was not an easy thing to draw up a narrative of what a witness had stated. He suggested that the evidence, when reduced to the form of a narrative by the examiner, should be signed by the witness, and that this should be done in case of cross-examination.

The SOLICITOR GENERAL

said, that this practice of reducing the evidence into the form of a narrative was uniformly adopted by the Judges of the common law courts.

The ATTORNEY GENERAL

remarked that in the common law courts the Judges had an opportunity of observing the demeanour of the witness, which was not the case in the Court of Chancery. Still the mode suggested by the Bill was a great improvement on the existing one.

MR. BETHELL

recommended that where a witness refused to sign his evidence, the examiner should be competent to certify the depositions, and the witness be personally examined, if required, before the Court. Otherwise, the witness, by refusing to sign, might hinder the cause ever coming to a hearing.

The SOLICITOR GENERAL

rather recommended that, in the case of a witness refusing to sign, the depositions might be signed by the examiner, who might report to the Court any special matter which he might think fit. Certainly the witness should not have the power of invalidating the proceedings.

The MASTER OF THE ROLLS

asked whether a witness alleging that the deposition as taken down was inaccurate, and on that ground refusing to sign, was to be indicted for perjury? He was of opinion that the matter, which was most important, should be maturely considered.

MR. C. P. VILLIERS

said, that he was afraid that the mode suggested for taking evidence in equity, under this Bill, would tend to perpetuate expense and delay. There would be an appeal to the Court on exceptions to evidence, and this would necessarily occasion expense and delay. He begged the Committee to consider the question of whether it would not be better to have a competent officer to decide on all such questions of evidence as might be raised, as had been recommended by the Lord Chancellor in his evidence before the Committee. This would save the suitor the expense of these disputed points of evidence. By so doing they would materially decrease the delay and expense, which would be increased by the plan proposed by this clause. The costs of the suit were the greatest hardship to the suitor, and this would swell the costs considerably. Counsel on either side must be admitted, who would quarrel and waste the time of the Judge in deciding these questions of evidence. He should not now stop the progress of the Bill, but hoped this suggestion would meet with consideration.

Clause agreed to.

Clause 31.

SIR ALEXANDER COCKBURN

said, he thought there were grave objections to the latter part of the clause, as it might open the door to great delay and expense. The evil lay at the root of the system, and resulted from having the evidence taken by one Judge, and decided upon by another. He must say that they would not amend the procedure of the Court of Chancery until one and the same mind received the evidence and determined upon its effect. However, that was not intended to be done at present; and, therefore, he thought it would be better to direct the examiner to take down all the evidence, whatever the nature of it might be, and to transmit it to the Judge, who would strike out those portions of the evidence which he thought inadmissible.

MR. WALPOLE

said, the clause applied to cases where a demurrer was taken by the witness to questions that were put to him. Such case3 seldom occurred. He did not think it would be desirable for the examiner first to decide on such a question, and then have it taken to the Court by an appeal.

MR. ROUNDELL PALMER

said, that the same rule ought to be adopted in equity as in the case of an examination by a commission at common law. He thought the clause would work well.

The SOLICITOR GENERAL

said, that most mature consideration had been bestowed on this clause, but it was impossible to enact that there should be no appeal from the decision of the examiner as to the admissibility of evidence, either directly or indirectly. Therefore, it would he useless to provide that the matter should be decided by the examiner in the first instance. Substantially, the clause would have the same effect as the alteration proposed, and he hoped it would pass without that alteration.

MR. BETHELL

suggested, that the practice of common law should be substituted for this form of demurrer, as great delay and expense would arise from it to the suitor. He thought that the party whose question a witness refused to an- swer, should have power to move that the witness should be attached, as was done at common law, before an examiner.

MR. C. P. VILLIERS

said that, under this new system, all sorts of questions would be put and objected to, and there would be an opening for a large source of business to the profession, because the examiner could not decide at once as to the matters in dispute, but there was an appeal allowed. There was no appeal from such questions in the County Courts, and he thought it would be better to give the examiner the same power as the County Court Judges.

The MASTER OF THE ROLLS

said, that his hon. and learned Friend had misapprehended the clause. The examiner was merely to put down the question and answer; but where a witness refused to answer a question that was put to him, on the ground that it might relate to a confidential communication, or tend to self-crimination, those were the only questions on which there was to be an appeal. If the examiner were to be allowed to decide conclusively on the admissibility of evidence, the costs would be greatly increased, for the whole case must then be gone into by him. This clause only referred to objections to questions in the nature of demurrers.

Clause agreed to.

Clause 32.

MR. C. P. VILLIERS

said, there was a sworn clerk in the registrar's office, and his duties would no longer be required now this Bill was passed; but the examiner was to forward the evidence to the Record Office under this clause, and this officer might be used for that purpose, as otherwise he did not see how the evidence could get to the Record Office.

The SOLICITOR GENERAL

said, the evidence would be transmitted to the Record Office in the usual manner.

Clause agreed to; as were also Clauses 33 to 58 inclusive.

Clause 59.

The MASTER OF THE ROLLS

objected to the clause, as it appeared not to come at all within the scope of the Bill. The object of it was to enable the Courts of Common Law to send cases into the Equity Courts to have their decisions upon questions of equity. This increased the evil which the Commission had reported had arisen from sending cases from the Equity Courts to the Common Law Courts. He thought every Court ought to be able to execute justice itself completely by those powers which it possessed.

The SOLICITOR GENERAL

agreed with what had fallen from the right hon. Gentleman, and would acquiesce at once in his suggestion that the clause should be struck out of the Bill.

MR. BETHELL

stated that it had been his intention, but for the special circumstances of the present Session, to move the presentation of an Address, praying Her Majesty to issue a Commission directing the members of both the common law and the equity courts to consider expressly the propriety of consolidating and uniting the various jurisdictions, and also of consolidating the statute law.

MR. ROUNDELL PALMER

admitted that the courts of law and equity wanted a mutual adjustment, and that there were many of the jurisdictions of the courts of equity which ought to go to courts of law, in order that the latter might have complete jurisdiction over the causes they had power to deal with; but he believed they would be acting contrary to the first principle of the division of labour—they would be abandoning the useful result of long experience, if they were to attempt to unite the whole of the business now done by the courts of law and equity in one and the same system. In point of fact, this had not been attempted to be done in America; there the real distinctions between law and equity were quite preserved. He hoped the question, when it was raised, would be considered, not only with the view of abolishing useless, but with the view of preserving useful, distinctions, and of maintaining a just division of labour.

Clause struck out. Remaining Clauses agreed to.

The MASTER OF THE ROLLS

moved the addition of the following clauses, which were unanimously agreed to:—Clause to follow Clause 47—No suit in the said Court shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the Court to make binding declarations of right without granting consequential relief. Clause to follow Clause 57—(Court of Chancery not to send cases to law). It shall not be lawful for the said Court of Chancery in any cause or matter depending in the same Court, to direct a case to be stated for the opinion of any Court of common law, but the said Court of Chancery shall have full power to determine any questions of law which in the judg- ment of the said Court of Chancery shall be necessary to be decided previously to the decision of the equitable question at issue between the parties.

House resumed. Bill reported.