HC Deb 18 June 1852 vol 122 cc928-33

Order for Committee read.

House in Committee.


asked the Attorney General whether his attention had been drawn to the propriety of introducing into the 42nd Clause a power to bring questions before a Judge without the intervention of a jury.


said, his attention had been called to the expediency of getting rid of the necessity of summoning a jury; but it was a very large and important question, which they ought not to touch without reflecting on the consequences. This Bill was framed upon the recommendation of learned Commissioners, and had been most carefully considered in the other House. He therefore thought it would be inexpedient to introduce any provision into the present Bill which would render a jury unnecessary.


said, he could not find from their Report that the Commissioners had considered the question at all.


begged leave to refer back to the 18th Clause, to fulfil a promise he had made to his right hon. Friends the Attorney and Solicitor General for Ireland, and the Lord Advocate for Scotland. The clause enabled them to serve summonses upon persons removed out of their jurisdiction, and to proceed in the English courts against those parties. It was intended to apply to persons going abroad, and with no intention of clashing with the jurisdiction of the courts in Ireland and Scotland. He had, therefore, no objection to introduce into the 18th Clause, after the words "in any place," the words "except Scotland and Ireland."

Clause amended accordingly.

Clause 5 (No pleading shall be deemed insufficient for any defect which could heretofore only he objected to by special demurrer except in the cases hereinafter particularly mentioned).


said, he had a very strong objection to this and the following-clause. The profession and public were agreed that special demurrers were a disgrace and scandal, and nothing more than verbal quibbles. The Commissioners were of the same opinion; but the Bill did not carry out the views of the Commissioners in that respect. He did not see the necessity of continuing demurrers in any case whatever; and he would submit to the Attorney General that the exception in this clause should be struck out, and also the whole of the 52nd Clause, allowing demurrer on the grounds of duplicity, argumen- tativeness, and uncertainty, for the purpose of introducing a provision that if the pleadings were purposely framed to embarrass, the other party might take out a summons before a Judge to amend them.


entirely agreed in the propriety of getting rid altogether of special demurrers. The Government were not in the slightest degree responsible for the clauses of this Bill, which had come down from the Lords, after being carefully considered there, and undoubtedly it did not carry out the recommendation of the Commissioners that special demurrers should be entirely abolished. He considered them a disgrace to the profession, and he only regretted his hon. and learned Friend (Mr. Crowder) had not consulted him, that a clause might have been prepared between them to carry out the views of the Commissioners. He would suggest that the portion of the clause denoted by the hon. and learned Gentleman, and Clause 51, be struck out, and a new clause brought up on the Report.


concurred as to the disgraceful character of special demurrers, which had the effect of delaying parties having substantial rights from obtaining judgment upon them.


proposed to strike out the exception in the 51st Clause, and the whole of the 52nd Clause, and suggested that the Attorney General and the Solicitor General for Ireland should prepare some provision, not precisely in the words in the Report of the Commissioners, but to enable parties really to understand what was to be tried.

Clause amended. Clause 52 struck out. Clause 53 agreed to.

Clause 80 (Either party may, by leave of a Judge, plead and demur to the same pleading at the same time, upon an affidavit by such party or his attorney).


moved to leave out the words following the word "time," and thus to render it unnecessary for parties to support their pleadings and demurrings by affidavits. He objected to all unnecessary oaths.

Amendment proposed, page 21, line 21, to leave out from the word "time" to the word "and" in line 28.


said, there might be cases in which the parties would agree upon the pleadings, and no affidavits would be necessary.


suggested as a compromise between requiring affidavits in all cases, and not requiring them at all, that they should be necessary "if required by the Court."

Question put, "That the words proposed to be left out stand part of the Clause."

The Committee divided:—Ayes 56; Noes 18: Majority 38.

Amendment made; the words "if required by the Court," added to the clause after the word "affidavit."

Clause agreed to.

Clause 121 (Abolishing ground writs).


called the attention of the Attorney General to the case of a person having a debtor who resided at Peck-ham, whence one might escape into the adjoining county of Kent, and who had places of business in London and Westminster. No fewer than four writs would be necessary in that case; but why should not the Queen's writ run everywhere?


saw no use for a multiplicity of writs.


remarked, that sheriffs and officers must be made capable of executing writs in counties where they were not sheriffs and officers, if the suggestion thrown out were to be carried into effect.


thought the question raised by the hon. and learned Member for Haverfordwest (Mr. J. Evans) was, whether, a writ being issued, any sheriff might not execute that writ. The question was a knotty one; and the pro-prosition of the hon. and learned Member would so far interfere with the existing state of things that he could hardly be expected at once to acquiesce in it.

Clause agreed to; as were also the remaining clauses.


said, he was one of those who entertained a strong opinion that all forms of action were unnecessary, as causing impediments in the administration of justice; but he did not think it right to hazard the passing of this Bill, by introducing into it such a provision. He was the more willing to forego the carrying those provisions this Session, as he observed that the late Lord Chief Justice (Lord Denman) had given notice in the other House of his intention to introduce next Session a Bill for this purpose. As they were now come to the last clause, he could not finally take leave of the Bill without expressing his thanks, which he was sure were due, to his hon. and learned Friend the Attorney General for the friendly way in which he had entered into the spirit of this great improvement of the law, and the assistance he had rendered to the Commissioners and to the public by applying his best efforts to their service. The whole of the profession and the public must feel much indebted to his hon. and learned Friend and to Her Majesty's Government.


concurring in the opinion that this Bill would be attended with the most beneficial results, announced his intention to introduce in the next Session of Parliament a similar measure having reference to Ireland.


expressed a hope that the Government would consider the suggestions made in the course of this discussion.

Last clause agreed to.


said, it had been found that very great oppression arose from the permission to plead in formâ pauperis. The power was given, he thought, under a statute of Henry VI., and serious consequences attached to the pauper if he brought a suit improperly, because he was liable to be whipped. That provision, he supposed, would not be applied in the present day. It was necessary that the party should obtain a certificate of counsel that he had a good cause of action, and on that certificate he was allowed to sue in formâ pauperis. The consequence was, the person so suing was not liable for any costs if he failed, and if he succeeded, the other party had to pay the whole of the costs. Hon. and learned Gentlemen on both sides of the House would confirm him in saying there had been a variety of cases in which it was quite scandalous that an action should ever have been allowed to be brought by a pauper. What he proposed to do was, to provide, that in every application for permission to plead in formâ pauperis the counsel should appear in such application, and in addition, if the pauper recovered, he should not be entitled to his costs unless the Judge who presided should certify that it was a proper case for the pauper to have costs. This had been suggested by one of the Common Law Commissioners, and as he anticipated no objection to it, he should bring up a clause to that effect. Clause brought up and read.


admitted there were some cases of persecution under this form of proceeding, but he objected to legislating for exceptional cases. He thought they ought not to exclude the poor from this old privilege, and that it was unlikely respectable attorneys or counsel would take up any cause, however just, if their sole remuneration was to rest upon the caprice of the Judge who presided.


said, the clause took that side of the House a little by surprise, and it would certainly be placing a great restriction upon the poorer part of the community seeking redress in the courts of law. He quite agreed that cases of glaring abuse in some way or other occurred, but he hoped his hon. and learned Friend would allow the clause to stand over to the subsequent reading of the Bill.


said, be was convinced it was never the intention of the old Act that the pauper should recover any costs at all; but as his hon. and learned Friend the Member for Southampton said it took him by surprise, he had no desire to press the clause. He would leave it for some subsequent provisions, and would therefore withdraw it from this Bill.

Clause withdrawn.

Clauses, extending the provisions of the Bill to the Courts of Common Fleas of Lancaster and Durham, added; the preamble was agreed to.

House resumed. Bill reported.