OFFICE OF EXAMINERS (COURT OF CHANCERY) BILL. (Hansard, 21 February 1853)

§ MR. PHINN
said, he wished to call the hon. and learned Solicitor General's attention to this Bill, and to the operation of the Bill of last Session. Before that period there were no means of obtaining oral evidence of any fact before the Court. The Act of last Session introduced a very remarkable change in that particular, and had afforded facilities as contrasted with the former state of things; but there were many questions which would spring out of this Act, and he trusted the hon. and learned Gentleman would, on some future measure, adopt such suggestions as the operation of that Act gave rise to. It was well known now that when parties came before the Examiner, there were no particular facts to which the attention of the Examiner was confined, and there were also no limits within which the examination was conducted. The Act of last Session also provided that the Examiner should have no power to decide upon what facts were material or irrelevant to the inquiry, and parties were thus involved in a very considerable expense, and a very great accumulation of evidence was the result. Again, it was necessary, under the present system, to bring witnesses from various parts of the country at considerable expense; and he maintained that there were functionaries in the country—for instance, the Commissioners of Bankruptcy, who at present enjoyed a life, of comparative idleness—upon whom this duty might devolve. The position of the Examiner at present was purely a Ministerial one; he had no opportunity of regu- 391 lating the proceedings of his own tribunal, and of reducing the proceedings to that state to which it was so necessary to reduce them in order to bring them to a termination. There were various matters connected with this Act to which he would call attention—but one prominent vice seemed to him to pervade the whole system. The great advantage of cross examination, which consists in the person who has to decide observing the conduct and demeanour of the witnesses, was entirely dispensed with according to the present system; and, though there was a great change as compared with the previous state of things, there appeared no prospect that it was one which would endure for any length of time. Gentlemen who undertook these offices ought to be apprised that if additional duties were placed upon them, or if a change took place in the nature of their offices—if, for instance, it was determined that they should assume rather judicial than ministerial functions—they would not thereby be entitled to retire, or entitled to any compensation whatever. In this way no Bill would be introduced like that with respect to the Masters in Chancery last year, when the public thought that, although a great change was effected, it was brought about at a considerable expenditure of public money. There were various details connected with the clauses of this Bill, which deserved attention, and particularly that regarding retirement. The whole matter was in a state of transition, and they ought not to limit themselves and create impediments in the way of future legislation by appointing officers who might hereafter claim compensation.

§ MR. WALPOLE
would suggest that they should now merely go into Committee pro formâ. The third clause of the Bill required very considerable alteration, as the wording of it was very defective. As the clause now stood, the annual sum to be paid to the Examiner under this Bill was to be made payable, not from the time of his appointment, but from the date of the resignation or death of his predecessor, so that he would receive a salary possibly for a considerable period between the time when the former Examiner left his office or died, and he was appointed. Words ought, therefore, to be introduced to something like this effect:—"Such annual sum to be payable from the day or date of the appointment of the new Examiner." The Bill now gave a retiring pension to the Examiner after fifteen years' service, 392 so that if a gentleman were appointed at thirty years of age, it would be at his own option to retire by the time he was forty-five or fifty, receiving three-fourths of his salary. At the end of this third clause, the proviso, as it was drawn, did not carry into effect his own object. For these reasons the hon. and learned Solicitor General would, he trusted, consider the amendments of his hon. Friend (Mr. Mullings), and any other amendments which it might be thought right to insert in the Bill.

The SOLICITOR GENERAL
said, that with respect to the wording of the last clause, the right hon. Gentleman would be somewhat surprised when he told him that that clause had been literally copied from the Masters' Abolition Act of last Session. He hoped the House would consent to go into Committee, on the understanding that the amendments would be embodied in the bringing up of the Bill, and considered on the report.

§ MR. MULLINGS
said, he objected to the clause on the ground that it would establish an entirely new principle with regard to the appointment of the Examiners. He considered that persons who had heretofore been eligible for that office—namely, solicitors of good standing, were at least as competent to take the examinations to which the Bill referred, as barristers of seven years' standing. He would therefore move that the clause he omitted; the right of appointment would then be left to the Lord Chancellor, who might appoint barristers if he thought fit.

§ MR. MURROUGH
said, he begged to express his concurrence in the views of his hon. Friend. When he considered the present state of the profession of which he was a member—when he considered that there were to be found in that profession men of education unsurpassed, of talents undeniable, of integrity unimpeachable, he thought they had a right to complain when they found that the tendency of modern legislation was to strip them of those resting-places which they had been accustomed to enjoy when they retired from active life. It appeared that nearly all those appointments for which solicitors had hitherto 393 been eligible, were now to be given to those paragons of judicial wisdom and discretion, barristers of seven years' standing.