§ Order for Second Reading read.
MR. J. D. FITZGERALD
begged to express his readiness to assist his hon. and learned Friend the Solicitor General for Ireland in making this Bill as beneficial as possible; but when he (Mr. Fitzgerald) informed the House that the Bill consisted of 276 sections, of which 144 were taken from the Common Law Procedure Act of 753 last Session, and which not only consolidated but made many very serious amendments and additions to the law of Ireland, and that he had only received a copy of it that morning, he thought his hon. and learned Friend would not consider him unreasonable in requiring a little more time before he was fully prepared to assent to the whole of its provisions. He would read the preamble, which would give the House a tolerably clear idea of the very extensive nature of the alterations it was proposed to make by this Bill. It recitedWhereas it is expedient to simplify and amend the course of Procedure as to the Process, Practice, Pleadings, and Evidence in the Superior Courts of Common Law in Ireland, so as to make the same less dilatory and expensive, and to prevent substantial justice from being defeated by reason of the variety of forms of action, and the technicalities and prolixity of Pleadings, and the unnecessary length of Records, and to consolidate the provisions of several Statutes and Rules of Court relating to such proceedings, and also to enable the said Superior Courts of Common Law to give effect to certain legal rights and just defences without the expense and delay of a resort to a Court of Equity.A Commission of Inquiry into the procedure of the common law in Ireland was appointed during the Viceroyalty of Earl de Grey, and the Commission made a Report in which various improvements were suggested. These suggestions were carried into effect by two Acts of Parliament; and in 1850 another Act passed, called "The Practice and Process Act," under which, and a code of rules framed under it by the Judges, the common law in Ireland was now administered; it did, therefore, appear to him strange that, so soon as the year 1852, another Act should be introduced which would make considerable alterations in the Act of 1850. The Bill now before the House made some new provisions in the law of Ireland, particularly with reference to commercial transactions. Now, it was well known that the commercial transactions of this country and of Ireland were much mixed up together, and he thought it unwise to legislate upon such subjects for one country and not for the other. Among other things, "it made choses of action" assignable, which by the Common Law they were not; but these would only be assignable in Ireland, and not in England. This he considered very objectionable, and such an alteration ought not to be made unless it were extended to England; for instance, policies of insurance would be thus made assignable in Ireland, and not in England, 754 where nine-tenths of the policies effected in Ireland were entered into by English Assurance Companies. There was one serious omission in the Bill. The law in Ireland upon the subject of security by judgment was in a most unsatisfactory state. It had been altered year after year till no lawyer could venture to give an opinion upon any question relating to the law of judgment in that country. There were six conflicting Acts in Ireland upon the subject, and yet, although his hon. and learned Friend in his Bill had dealt somewhat largely with security by judgment, be had stopped short of treating the matter as a whole, so as to remove all difficulty fur the future respecting it. Again, his hon. and learned Friend proposed to repeal several Acts, and it was stated in the repealing section that those Acts would be found enumerated in the Schedule; but he looked for the Schedule; it was not to be found in the Bill, so that he could not discover what were the Acts intended to be repealed. In these and in other respects the Bill admitted of considerable amendment, and he should be happy to give his assistance to effect that object; but, in order to be able to do so, he should require, that if the Bill were now read a second time, it should not go into Committee till after the recess, and that he should be permitted, on the third reading, to oppose any part of the Bill that he thought objectionable on principle. But the principal defect he found in the Bill was, that while it professed to be a consolidation and an amendment of the law, it was not in its provisions half so extensive as it ought to be. His hon. and learned Friend had proceeded to deal with one great principle that had recently been made the subject of much agitation, involving the question whether the distinction of Courts of Law and Courts of Equity should be suffered to exist. Now, he (Mr. Fitzgerald) did not at present profess to state what his own opinion was in regard to that question, and probably, too, his hon. and learned Friend might entertain some doubts upon it. But he (Mr. Fitzgerald) found in the Bill that the subject had been directly dealt with, and that the distinction between Law and Equity in one particular or two had been entirely swept away. Why, if the principle were adopted at all, should his hon. and learned Friend stop short and apply it only to a small evil? If this part of the measure be not well and duly considered, the consequence would be that the Bill, when passed into an Act, 755 would meet with the same fate as other Acts passed heretofore had done, and that, perhaps, in the Session of 1854 his hon. and learned Friend would again come forward and propose some further Act to amend the law of the Session of 1852. As a lawyer, he confessed he did not know in what position they stood, the alterations having been so many within the last few years. It could not be denied, however, that Ireland had long preceded England in reform of the law. They had there County Courts and other popular improvements half a century before they were adopted in this country; and the reform of the Superior Courts of Common Law and Equity had been steadily progressing for the last twenty years. He was still anxious to see further improvements introduced there, and therefore should be willing to assist his hon. and learned Friend in extending this measure. His hon. and learned Friend was once a Protectionist in law, and had how become a Free-trader in law. To that he (Mr. Fitzgerald) did not object; neither did he ask him to insert in the preamble that this was "a wise, just, and beneficial measure;" but what he did ask him was, not to object to allow him (Mr. Fitzgerald) an opportunity to assist him in carrying out the Bill by agreeing to postpone the Committee till after the Christmas recess.
§ MR. LOWE
said, that having given a great deal of time and trouble on the subject of law reform, he felt bound to say that this Bill did the hon. and learned Gentleman the Solicitor General for Ireland a great deal of credit. In his eloquent and luminous speech he had laid down some excellent and sound principles; and altogether he considered the present measure to be one far in advance of that introduced last Session for the amendment of the law in this Country. The hon. and learned Gentleman abolished all those absurd technicalities and monstrous falsehoods which had so long been the opprobrium of the law, and introduced a noble and just principle—that of making parties verify their pleadings, so that courts of justice should no longer decide as they now did, on merely technical and mendacious grounds, instead of on what was the real and true state of the case between the parties. The Bill also introduced another very valuable principle—namely, the assignment of debts and of choses in action. In these and in many other respects he considered the measure to be one very much in advance of that of last Session, and that 756 it was a step very honourable to the legal ability and liberal views of the hon. and learned Gentleman. But, just in proportion as this Bill did credit to the hon. and learned Solicitor General for Ireland, so just in proportion was it a reflection on the measure of legislation of last Session which was passed for reforming the law of procedure in this country. The two measures for the reform of the law—that for England in the last Session, and that for Ireland this Session—were substantially identical; it was therefore not creditable to the House of Commons, nor to the state of the science of jurisprudence in this country, that on two subjects so completely identical there should emanate from the House measures so very different in their foundation; because, although he had heard it said that Ireland was in some respects a-head of this country, in law reform, still, the law of the two countries being in principle identical, that which was good and true for one country, must be good and trite for the other country. But what was the fact? There had been a conference of legal persons of high legal standing to consider the propriety of bringing the law of the three kingdoms into a state of harmony, by doing away with difficulties and anomalies, so as to enable persons to carry on their transactions by one and the same rule and process. But what did the Bill now before the House effect? It actually tended to create further differences in the law; and, indeed, its very improvement over the measure of last Session, in that sense, would create greater difficulties than existed at present. The subject, therefore, was one which demanded considerable inquiry; and, though he did not mean to object to the second reading of the Bill, yet he thought it his duty to suggest a few matters for the consideration of the hon. and learned Gentleman. The main and principal point on which the hon. and learned Gentleman dwelt when he addressed the House with so much eloquence and ability on introducing his measure, was the absurdity of retaining those technical forms of action which existed in the Courts, and which he so justly described as the remnants of an obsolete feudal system; and the hon. and learned Gentleman said that it was his intention to abolish those technical forms accordingly. But he (Mr. Lowe) regretted to say that that intention was not by this Bill entirely carried out, For, though it was stated in the preamble that it was expedient "to prevent substantial justice from being defeated by rea- 757 son of the variety of forms of action, and the technicalities and prolixity of pleadings," yet, when he came to look at the section itself with respect to the forms of action, it ran in these terms: "The technical terms of action heretofore used shall not be necessary"—it did not say, "shall be abolished"—but it left them in a middle state, so that they might or might not be retained. Now, he contended that, if technical forms were good, they ought to remain, and if they were bad, they ought to be abolished. But, if hon. Members would go on a little further in the Bill, they would see that not only were these technical forms of action not abolished, but that they really remained as a vital and integral part of the law of procedure. For by the 6th section it was provided, that—The right to recover any debt or damages or personal chattel, in respect of any matter of contract or of tort, or taking or detention, which might have been heretofore the subject of any action of debt, covenant, assumpsit, account, trespass, trespass on the case, trover, replevin, or detinue, shall and may be enforced in an action to be called a 'personal action;' and all actions of 'ejectment' shall henceforth be commenced and prosecuted in the manner hereinafter provided.And then, by the 7th Clause, it was provided that—The Court shall have and exercies, in and about any matter brought before it, in any such personal action or action of ejectment, under the provisions of this Act, the same jurisdiction, power, authority, and discretion, to all intents and purposes, as it could have exercised in an action for the same purpose instituted in the manner hereinbefore used.Now, what did that mean? It meant this, that if a question arose as to the jurisdiction of the Court of Common Law in Ireland, or as to what this Act applied to, the only answer the Act itself gave was this, that the Courts of Common Law in Ireland had jurisdiction over, and that the Act applied to, matters which were now sued for in those particular technical forms of action which were specified in the Bill. So that the Bill, instead of relieving us from those technical forms, continued them, and the Irish lawyer would be just as much obliged to acquaint himself with all those forms of action of debt, account, assumpsit, covenant, detinue, trespass, trespass on the case, trover, or replevin, not only for the purpose of knowing what action be might bring, but in order to ascertain the jurisdiction of a Court of Common Law as opposed to a Court of Equity. So far, therefore, from the hon. and learned Gentleman having abolished those forms of action, the effect of this measure was to 758 make them the foundation of his general form of action, and it was only by reference to them that it could be known what was the jurisdiction of the Common Law Courts at all. He (Mr. Lowe) agreed with the hon. and learned Gentleman that it was absolutely necessary that these forms should be swept away if they were to make any advance in the improvement of Common Law pleading; but, framed as the Bill was at present, those actions were made to constitute the very basis of the Common Law Courts themselves. The hon. and learned Gentleman bad established by reasoning that the distinction between Common Law and Equity itself must be swept away. Very well; if that be so, let us adopt the principle; but don't attempt to sweep that distinction away by pretending to abolish those forms which constitute that very distinction, and yet by the same Act retain the forms, and thus uphold the foundation of the two descriptions of courts. If they once got rid of those technical forms, they would get rid of the distinction between Common Law and Equity. Therefore, if any man could make up his mind to go as far as this Bill went, he ought to go a great deal further. This was not merely theory on his part, for the hon. and learned Gentleman the Solicitor General for Ireland would recollect the introduction of the Bill for altering the Common Law in this country. The opinion of the Common Law Commission was, that these forms of action should be abolished, and a Bill was prepared for that purpose. But, when it was so prepared, it was perceived that not merely would they be getting rid of those technical forms of action inter se, but they would be getting rid of the difference between Common Law and Equity altogether. On perceiving this, the Committee who prepared the Bill considered that they would be unnecessarily destroying the landmarks between Common Law and Equity; they therefore withdrew the first Bill and introduced a second, and thereby retained the technical forms of action as before. Now, that was consistent. Those Gentlemen were not prepared to throw down the distinction between Common Law and Equity; they therefore fell back upon the common forms of action. But the hon. and learned Gentleman had gone further than that—he had abolished the forms of action; but he must not abolish those forms in one section, and bring them back again in another. He (Mr. Lowe) called the attention of the hon. and learned Gen- 759 tleman more particularly to this matter, because he had made some laudable efforts to correct the law by giving the Courts of Common Law power to give relief in cases of lost bills and instruments, and also by allowing equitable defences to actions of ejectment. He had also given the Common Law Courts the power of setting aside inequitable legal defences, such as those founded on outstanding legal estates. He (Mr. Lowe) thought it could hardly be denied, that if that principle were good for anything, it was good for a great deal more than that. If the hon. and learned Gentleman set the distinction of Law and Equity aside in these matters, was it not by surprise or by mistake that he had not done so in matters of the highest importance? Either it was right to retain these forms of action, and to perpetuate his distinction of jurisdiction, or it was not. If not, then why do so in some few cases? But, if right to do so in respect to these, would it not be far better to do so in respect to all? Was it not monstrous that one set of courts should only recognise rights in the mortgagor, and another set of courts only in the mortgagee? That one should see no rights except in a trustee, and the other no rights except in the cestuique trust? That one should maintain, and the other should set aside transactions, on the very same facts? Surely, if the principle of giving to the Courts of Law equitable jurisdiction in some cases were good for anything, it was good for much more. He felt sure that the question could not rest here; and he ventured to hope that his hon. and learned Friend would be induced to see whether matters could not be carried further, and whether that great principle which had been advocated by Lord Mansfield, by Bentham, and by all the great lawyers who had given much attention to law reform, could not be accomplished, and the false and mischievous distinction between Law and Equity be for ever exploded. With regard to the alteration proposed in the form of procedure, he objected to the plan of making an abstract of the pleadings, as was proposed in this Bill, because, when parties had gone to the expense of pleading they had incurred enough cost, and the next best thing was to try the case, instead of which it was provided that an abstract Of the pleadings should be made by the attorneys on both sides, if they could agree, and, if they could not agree, application was to be made to the Judge. This appeared to him to be objectionable, on the ground of expense. He perceived also 760 a great omission in this Bill, with respect to the kind of judgment that might be pronounced in an action under its operation. In Equity a suitor, if successful, obtained such a decree as he asked for, or as the court thought just; but at Common Law the Court could only give a strict technical judgment. Now as the technical judgment followed the technical division of actions, now that the forms of action were abolished, he wished to know how the Court was to be directed in its judgment. He entreated the hon. and learned Gentleman to consider the few observations he had taken the liberty of making, and to endeavour to put the matters he had referred to on a more satisfactory footing.
§ SIR ALEXANDER COCKBURN
said, he was very glad the hon. and learned Solicitor General for Ireland had brought in this measure, and he should regret much if the Bill should not be read a second time. At the same time he fully agreed with the hon. and learned Member (Mr. Fitzgerald), that it would be a great pity to prematurely hurry the Bill through Committee. He quite concurred in what had been just stated by the hon. and learned Member for Kidderminster (Mr. Lowe), namely, that the Bill now before the House was a great advance upon the English Common Law Procedure Bill of last Session, and thought he could point out the reason for this. The Common Law Commission recommended the abolition of the forms of action; but this important Amendment was abandoned, because certain judicial authorities were alarmed at the recommendation of the Commission going to such great length. We sometimes cut away the mast in order to save the ship, and, on that principle, it was found necessary to give up the proposed alteration. He very much regretted this, and now that the Government were prepared to go so far in the reform of the Irish Law, he trusted they would apply the same principle to the English Common Law. He willingly admitted that this Bill was an advance in other respects upon the Bill adopted in accordance with the Report of the Commission of which he had the honour of being a member. They had thought it necessary to deal with the incidents of an action in its various stages; but the Commission were not prepared to stop there, and their recommendations would form the subject of a Report which would shortly be laid before the House, and in which would considered several most 761 important matters, which formed no part of the Bill of the hon. and learned Gentleman. They would probably propose that Courts of Law should give the effect of a Bill of Discovery by the examination of parties to a suit; and that the Common Law Courts should have power of discovery without any expense, not according to the form of procedure in the Courts of Equity, but by a simple process of oral discovery, bringing up the parties and giving the Judge the power of immediately striking out the pleadings. So with regard to the power of persons who had only an equitable right maintaining a legal action; and alterations were also proposed in many other important respects. They proposed to introduce various Amendments, doing away with technical forms of action which had become obsolete and ought to be abolished. With regard to the jury system, it was worthy of consideration whether the plan adopted in the County Courts, which had worked so well, should not become a guide for the practice of the Superior Courts—namely, that of allowing parties, by consent, to deal with a question, either with or without a jury, as they liked. If parties consented to try their cause before a Judge in whom they both had confidence, they should not be compelled to have recourse to the more expensive and less satisfactory process of a jury. He believed that one of the reasons why County Courts worked so admirably was, that if any new matter turned up in the course of a case, the Judge, sitting from day to day in the discharge of his duties, was enabled to say, "Come before me again to-morrow;" whereas with a jury the case must be gone through from beginning to end without adjournment, and the only remedy was to obtain, at immense expense, a new trial. A variety of subjects of this kind were under consideration, and would receive the best attention of the Commission, whose anxious desire was to make the procedure in the Courts of Common Law as complete and satisfactory as it could be made. He quite agreed with what had been said in favour of doing away with the distinction between the jurisdiction of the Courts of Law and Equity, the reason for the existence of which was, that the Legislature had in all ages abused the lawyers, instead of amending the Law, and that the Law, consequently, grew so stubborn and inflexible, that Equity crept in as a clumsy substitute, and a mode of doing ultimate justice. The first thing, therefore, was to make 762 Law and Equity one—to abolish all distinctions between Law and Equity, and, as the consequence, all distinctions in their jurisdiction. He hoped they were all agreed on the great question of law reform, and alike anxious to discharge their duty as regarded it to the public. As a member of the profession, he might say he believed that from one end of Westminster Hall to the other, the necessity for legal reform was admitted—an admission which, indeed, was, on the part of the profession, only an enlarged view of their own interest. They might depend upon it that the cumbrous rules and methods which it was proposed to abolish, only prevented parties, who otherwise would go into Court from asserting their rights, and, he was certain, did absolute injury to the profession as well as to the public.
§ MR. CROWDER
said, he was exceedingly happy to give his cordial vote in favour of the second reading of this Bill, and he begged to congratulate the hon. and learned Gentleman the Solicitor General for Ireland upon the able manner in which he had brought it forward The Bill in many respects was undoubtedly an improvement on that passed during the last Session for the Amendment of Common Law Procedure in England. His (Mr. Crowder's) only difficulty was tot understand how the Law Officers of the Crown thought fit to pass the measure of, last Session without the introduction of those very Amendments to which the attention of the House was now being directed, because they had not been discovered since the passing of that Act, for they had been suggested by members of the legal profession, and had even been discussed in that House. He fully concurred at the time in every one of those suggested improvements; but, nevertheless, no notice was taken of them on the second reading of the English Bill; and when the measure passed through Committee, the consequence was that they had a measure applied to the Common Law Courts of this country, which was decidedly inferior to that introduced on the present occasion to regulate the Common Law Procedure in Ireland. With respect to the abolition of the forms of action, he fully approved of that Amendment. It was stated that the Common Law Commission in their Report recommended the abolition of those forms, but that part of their recommendations was, nevertheless, not carried out, owing, as it appeared, to the expressed opinions of certain high judicial personages. He appre- 763 headed, however, that it was the duty of that House not to be biased by any notices of that sort, provided they were fully persuaded that such improvements ought to take place. For himself he was fully persuaded that all forms of action should be abolished. He did not think it necessary to go into the matter as fully as the hon. and learned Member for Kidderminster (Mr. Lowe) had done; but he would say with regard to another of those improvements—the pleadings—he thought that also a matter of very great importance in the conduct of lawsuits. How stood the case with respect to that? Why, in the Common Law Procedure Act, passed last Session, there was the declaration, the plea, the rejoinder, the surrejoinder, &c.; but in the present measure he found that was not to be a declaration but a plaint, which he thought a great improvement. Why was not that improvement introduced into the English Act? He thought the House had a right to complain, when they saw the legal reforms of Ireland so much in advance of this country. He complained that not one of those improvements—for he thought they were all valuable improvements—had been introduced into the English Act. There was another point on which he wished to say one word. He remembered himself calling the attention of the hon. and learned Attorney General, when the English Bill was in Committee, to the clause relating to the payment of money into Court. That was limited to certain causes of action; hut in the present Bill he found that was allowed in all causes—assaults, false imprisonment, libel, slander, malicious prosecutions, &c. The hon. and learned Solicitor General would probably recollect that he (Mr. Crowder) had pointed out that improvement for the English Bill, for he had expressed his approval of it at the time, but yet it had not been introduced into the Bill. He (Mr. Crowder) also approved of that clause of the present Bill which would enable assignees in "choses" of action to bring the action into Court, for he thought the law as it stood in that respect was a very idle distinction. He had made those observations in a friendly spirit towards the Law Officers of the Crown, both of England and Ireland; but he could not help repeating that it did appear to him very extraordinary that those very valuable improvements had not been introduced into the Common Law Procedure Bill for England; and it seemed to him still more remarkable that the Law Officers for Ireland, who had assisted in 764 framing the English Bill, had not introduced those improvements into it. He still hoped, however, with his hon. and learned Friend the Member for Southampton (Sir A. Cockburn), that they would yet have those improvements in the English Law, and that the Law Officers of the Crown, would introduce every species of reform consistent with the improved administration of the law, of which the present measure was such a favourable commencement.
The ATTORNEY GENERAL
said, he was desirous of receiving in a friendly spirit the observations of the hon. and learned Gentleman (Mr. Crowder), and quite agreed with him that his hon. and learned Friend the Solicitor General for Ireland deserved the gratitude of the House, not only for this measure itself, but for the very able and clear manner in which he had introduced it. But the hon. and learned Gentleman (Mr. Crowder), in making some very serious reflections upon the Law Officers of the Crown in England, had forgotten the circumstances under which they had charge of the Bill of last Session, which was said to be so deficient in its amendment of the Common Law Procedure in England, and the utter impossibility of making those additions which were proposed at the time. The hon. and learned Gentleman apparently had forgotten the impatience with which the Opposition side of the House had listened to any attempt to introduce any new measures, attributing to the Ministry that they were endeavouring to prolong the Session unnecessarily, and to disappoint the expectations formed of an early dissolution. This Common Law Procedure Bill came down from the Lords at a very late period of the Session. His hon. and learned Friend suggested various alterations in it, but whether he (the Attorney General) agreed with them or not was perfectly immaterial; there appeared to be a great chance of losing the Bill altogether, and they were therefore obliged to hurry it through the House. He was thus not a free agent in the matter; he had no liberty of choice. It was important to pass the Bill even in an imperfect state, and he had trusted to future occasions to introduce improvements, to which it was impossible to attend at the time they were made. Hs. hon. and learned Friend said the Bill for Ireland was in advance of that for England, and seemed to feel a certain shame that it should be so. He must consider this, that in Ireland they had the opportu- 765 nity of looking from the limits to which we had arrived, and must remember that even a dwarf, when on a giant's shoulders, saw farther than the giant. The Irish lawyers had had the benefit of English experience. His hon. and learned Friend the Solicitor General for Ireland had, he confessed introduced great improvements beyond those they possessed in the English law; but the House must not believe for one moment that he (the Attorney General) was not quite prepared at the proper time to adopt any improvements that could be made in the Common Law Procedure Act. With regard to the forthcoming Report of the Commission, it would be necessary to consider very carefully the amendments suggested, and not to rush at once upon all those reforms which were recommended by those ardent reformers who were among its members. The discussion upon which they were at present engaged was a very desultory, although he hoped not an unprofitable one. The suggestions made as to the working of this Bill were not now well timed, because the House was not discussing the details; they were only considering the principle of the measure, and those hon. Gentlemen who agreed to the second reading would have ample opportunities in Committee of suggesting the valuable improvements which they had heard to-night. He trusted the House would forgive him if he had been drawn away from the question really before them. Let the Bill go to a second reading, and when it went into Committee hon. Gentlemen could then suggest any alterations or improvements they thought proper. He was sure they would all come to the consideration of the question in the same spirit—a desire to make it as perfect and good a Bill as possible.
§ MR. COLLIER
said, it was not his intention to go into the details of the measure before the House; he would only make a few observations upon its principle. He quite agreed with the hon. and learned Member for Liskeard (Mr. Crowder), that the present measure was a very great improvement on the Bill of last Session. He thought the hon. and learned Gentleman the Attorney General somewhat misunderstood the observations of his hon. and learned Friend the Member for Liskeard. He (Mr. Collier) did not understand that hon. and learned Member to cast any reflections on Her Majesty's Law Officers, but only complained that a similar measure, introduced for England, had fallen so very far short of that for Ireland. It seemed to him one great 766 advantage of the measure then before the House was, that the form of pleadings, which we had tried a long time in our Courts of Common Law, had been found wanting, and had, in the present Bill, been thrown aside and a new system adopted. He also approved highly of the clauses of the Bill relating to County Courts, which had been eminently successful, and bad afforded great satisfaction in this country. He also thought the clauses relating to equitable jurisdiction a great improvement; and he concurred in the remark of his hon. and learned Friend the Member for Kidderminster (Mr. Lowe), that those who had gone thus far in Law Reform must consider whether they would not have to go much farther. With respect to the fusion of Law and Equity, which some thought so desirable, he concurred with those who said that there should be no rational distinction between them—that Equity was merely an excrescence on our system, arising from the imperfections in our Law. But it was another question as regarded jurisdiction, or whether the two could not be amalgamated in one common tribunal. He could quite understand that it might be necessary to have different Courts for a division of labour; but an anomaly which he apprehended was most objectionable was this—to see two different tribunals adjudicating on one matter on different principles. The only satisfactory law reform was that which would provide that the jurisdiction of a Court should be an entire and perfect jurisdiction. As an example, he would put a case, suggested by the hon. and learned Member for Southampton (Sir A. Cockburn). Why was it that a Court of Common Law could award damages for the non-performance of a contract, but could not enforce the payment of those damages? Then, again, with regard to injunctions. He remembered a case, tried before the present Lord Chief Justice—it was the case of the convent at Clapham, where the priests kept ringing the bells to the great disturbance and annoyance of the neighbourhood. An action was brought against the priests, and damages were recovered; but it seemed a strange anomaly that though the Lord Chief Justice could give damages, he could not stop the bells, but they might go on ringing the bells for ever, subject only to as many actions as might be brought against them. Now, for the reasons he had given, it appeared to him that this Bill was framed in a very comprehensive spirit, and he 767 hoped the alterations suggested would be made in Committee, and that even further progress would be speedily made in removing such other technicalities in our Law as are still left.
§ SIR DENHAM NORREYS
said, the only question seemed to be one of complaint, that the Irish should have had so much better a Bill than the English. He believed the Gentlemen opposite were anxious to give them cheap law and good; but why were they still unwilling that the jurisdiction of the Assistant Barristers' Courts in Ireland should be assimilated to the County Courts in England, and their jurisdiction extended from 40l. to 50l.? He could not conceive why they should object to what seemed so obvious an improvement of the law of Ireland.
§ MR. WHITESIDE
said, he felt bound to make his acknowledgment of the very kind remarks made by various hon. Members on his Bill both in the House and out of the House. He also felt bound to say that he received the most important assistance in preparing that measure from several members of the English Bar. Mr. Willes had favoured him with many valuable suggestions, and his hon. and learned Friend the Attorney General had strongly approved of the principle of the Bill. He therefore felt that he did not deserve himself all the commendations which had been bestowed upon him respecting this measure. As to the principle alluded to by the hon. and learned Member for Kidderminster (Mr. Lowe), he (Mr. Whiteside) had no authority to warrant him in adopting it. He could not break down the distinctions between the Courts of Law and Equity. This Bill did not do that; but it removed a great number of obstructions; it facilitated the proceedings; it cheapened the proceedings; and it shortened the proceedings. His hon. and learned Friend the Member for Ennis (Mr. J. D. Fitzgerald) had taken several objections to the Bill; but as those objections turned principally on the difference which would prevail between the Common Law Procedure in this country and in Ireland, it was evident that they would hereafter be obviated, for it was the intention of the Law Officers of the Crown in England to adopt hereafter any good which they might find in the present measure. He rejoiced to hear that such improvements as those suggested by the hon. and, learned Member for Southampton (Sir A. Cockburn) were to be made; and he agreed with the hon. and 768 learned Gentleman the Attorney General that the more they considered those changes the better. This Bill had been indebted to many eminent law reformers for several of its improvements, and he thought it would be rendered still more valuable at the present period when so much landed property in Ireland was changing hands. He should say, in conclusion, that they had also made considerable advances in the Court of Chancery in Ireland, where upwards of 1,500 summonses had been disposed of by summary proceeding for small amounts by the present Lord Chancellor of Ireland.
§ MR. GEORGE
said, he thought that the Common Law Procedure in this country and in Ireland ought to be completely assimilated, and he hoped that before the passing of the present Bill care would be taken to amend it in conformity with those improvements in the English system which it might be found desirable to adopt on the recommendation of the Commissioners, whose Report upon the subject would, it appeared, be published in a few days. There was nothing which could more effectually contribute to complete the union of the two countries than the perfect assimilation of their code of laws.
§ MR. PHILLIMORE
said, he felt much gratified at the introduction of the Bill. He believed it was one of the most comprehensive measures of Law reform that had ever been introduced into that House; and he regretted sincerely that the English lawyers had allowed the lawyers of the sister country to get so completely the start of them by the proposal of so important and useful a Bill. It certainly was necessary that pleadings should be verified, but he entertained a strong objection to the multiplication of oaths, and trusted that some form of declaration would be adopted. He also thought that the form of issue should be submitted to some authorised officer, in order that it might be properly stated.
§ MR. NAPIER
said, he wished to make an observation in reply to the suggestion which had been offered by the hon. Baronet the Member for Mallow (Sir D. Norreys). The hon. Baronet said he wished that the jurisdiction of the Assistant Barristers' Courts in Ireland should be extended in the same way in which the jurisdiction of the County Courts had of late years been extended in this country. Now he would remind the hon. Baronet that the present measure would afford the means of obtaining cheap and speedy jus- 769 tice, and would have the farther advantage of rendering that justice attainable in the Superior Courts. The Bill would abolish those technical forms of action which had hitherto formed such great obstructions to the ready enforcement of the just rights of suitors, and it would, in fact, throw open the higher tribunals in Ireland to the great mass of those engaged in the prosecution of legal claims. He hoped that no feeling of jealousy would prevail, because the Irish Courts had, in the first instance, been made subject to those improvements, and he felt persuaded that every Gentleman in that House would use his best endeavours to give to the measure the utmost completeness and efficiency.
said, he perceived that in the Bill, as it had been printed, the Acts which the measure was to repeal were alleged to be enumerated in a Schedule; but that Schedule had somehow or other been omitted. He wished to know whether that omission would be supplied before the House was asked to go into Committee on the Bill?
§ Bill read 2°, and committed for Monday next.