Commons Sitting of 8 June 1853

Preamble
MINUTES. PUBLIC BILLS.—2° Glanders Prevention; Common Lodging Houses.

COURTS OF COMMON LAW (IRELAND) BILL.
Order for Committee read. House in Committee.
Clause 1.
MR. WHITESIDEsaid, the English Common Law Commission had recently made a second Report, portions of which had been anticipated in the Bill; other parts had been carried out in some new clauses, but other parts, perhaps, required more consideration. As to costs, the reduction would be great; as, for instance, the costs on judgment by default would be reduced from 12 l. to 4.l He suggested that there should be a schedule of the Acts repealed.
The ATTORNEY GENERALsaid, the only object was to make the Bill as perfect as possible. It was desirable that the legislation as to both countries should be uniform. The clauses referred to had better be postponed until the new English Bill was ready.
MR. CROWDERsaid, he should wish to know if the Bill were to pass until these new improvements were introduced? It would be inconvenient to introduce a law only to be altered again next Session.
MR. WHITESIDEsaid, he wished to pass the Bill because it was not at all dependent upon the clauses referred to, which related to the amalgamation of law and equity, and did not conflict with the Bill. If on the third reading, however, any new clauses could be introduced, of course all the better.
MR. NAPIERsaid, he wished to add a word in favour of pleas being verified upon oath.
The ATTORNEY GENERALsaid, he must oppose this.
MR. WHITESIDEsaid, nevertheless he must propose it at the proper time, in

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accordance with the recommendation of the Commission.
Clause agreed to.
Clauses up to 9 agreed to.
Clause 10 (Actions to be commenced by writ of summons and plaint).
MR. J. D. FITZGERALDsaid, he objected to the expense which would be occasioned by requiring the cause of action to be set forth in the writ of summons. This was a retrogression, and a revival of the practice of proceeding by "special original," in which the cause of action was fully set forth.
The ATTORNEY GENERALsaid, this subject had been brought before the Common Law Commission, and it was suggested that by adopting this clause a twofold process would be avoided: first, that of taking out a summons, and then filing a bill or plaint. The answer to that was, that in nineteen cases out of twenty the actions were settled on the issuing of the summons alone. In the twentieth case, no doubt, facility would be given by including in the summons the full particulars of the plaint; still, if it were thought that it would be better to adopt the summons merely, without the full particulars, he was quite prepared to support the proposition.
MR. WHITESIDEsaid, the proposal went to the very root of the Bill. In the summonses issued by the County Courts the plaint was set forth, and thereupon the party assigned his defence, upon which the adjudication immediately took place. The sum now charged by an attorney in Ireland for the issue of a writ was 21.l 10 s.; and, though the Bill would not much reduce that sum, yet, by dispensing with the declaration, which now cost 6l. or 7l., much expense would be saved. The object of the measure was to encourage truth and brevity, and to provide that the defendant should be informed why he was I dragged into a Court of Law, and a full and complete account of the claim was,! therefore, required to be furnished on the writ of summons to be proved by affidavit or declaration. The 15 amp;16 Vict, c 25, admitted that very principle which the hon. and learned Attorney General seemed to forget. He begged the Committee to affirm this principle in the present case, and not to be frightened by the notion that these plaints could not be briefly stated.
MR. KEOGHsaid, he thought there could be but one wish in the Committee with respect to the administration of the
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law in Ireland, and to the relief of the suitors in the superior courts from all unnecessary expense, and he could assure his hon, and learned Friend opposite of his desire to promote that object as much as possible. In considering the Bill before the House, he was disposed to concur with the hon. and learned Member for Ennis-killen (Mr. Whiteside), though most anxious to meet the wishes of his hon. and learned Friend the Member for Ennis (Mr. J. D. Fitzgerald). In the assistant barristers' courts in Ireland, in which the jurisdiction had been lately extended to claims of 40 l, short forms of plaint and summons had been adopted, and he did not see why they should not be adopted by the superior courts also. The apprehensions of the hon. and learned Attorney General for England, and of his hon. and learned Friend, seemed to be, that the provisions of the clause might be made use of by attorneys to enlarge the pleadings by elaborate statements of the plaintiff's demand, and thus increase the expense. He did not think, if they referred to the 5th and 10th clauses together, they would be still of the same opinion. He would support the 10th, but concurred in the objections to the 11th clause, as he thought it would be enough to give particulars of plaintiff's demand before the summons or plaint had been filed.
MR. NAPIERsaid, he should support the clause, for he could not understand the objections of the hon. and learned Member for Ennis to extend a system which had worked so well in the inferior courts to the courts above. The Master of the Rolls in Ireland, in a valuable pamphlet he had lately written, had approved of the principle.
MR. COLLIERsaid, he thought there was a primâ facie case made out for the plan of the hon. and learned Member for Enniskillen over that of the hon. and learned Member for Ennis; inasmuch as one mode of proceeding was simpler than two modes of proceeding, and the answer of the hon. and learned Member to that case did not appear to him to be sufficient. He was in favour of the plaintiff stating the cause of action to the defendant.
The ATTORNEY GENERALsaid, he did not wish to set himself in opposition to the views of so many of his learned Friends, particularly as his hon. and learned Friend the Solicitor General for Ireland thought the clause would be beneficial; but he must say he did not think his argument had been

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appreciated. They could not desire to make the issuing a writ dearer than it was at present, but it would be necessarily dearer if new matter was inserted in it. The practice in the county courts had been referred to; but in ninety-nine cases out of one hundred the claims before these courts were mere simple money demands, in which it was reasonable that the plaintiff should inform the defendant what was his claim. In the superior courts, however, in cases of actions on covenant, charter parties, libel, &c, it would be impossible to state the matter of complaint.
MR. G. BUTTsaid, he would suggest that the clause should be altered by the insertion of words to the effect that the plaint should contain a true and succinct statement of the plaintiff's claim, instead of a narrative of it.
MR. WHITESIDEsaid, that this Bill, so far from being an ill-considered measure, as had been said, was the result of many months' deliberation on his part, and that it had been read and approved by many eminent lawyers and judges, amongst whom were the late Lord Chancellor Blackburne and Baron Greene. The system of procedure laid down by this clause was that adopted by the Supreme Court of New York.
MR. ROSS MOOREsaid, that the Amendment suggested by the hon. and learned Member for Ennis (Mr. J. D. Fitzgerald) would defeat some of the principal provisions of the Bill.
MR. CROWDERsaid, he was disposed to agree with the hon. and learned Member for Enniskillen (Mr. Whiteside), as he believed the clause as it at present stood was more in accordance with the scope and character of the Bill, and particularly with that part of it which related to the abolition of the forms of action.
MR. M. CHAMBERSsaid, that he believed that the clause as it stood would materially increase and not diminish expense. The object of the clause was to make the writ of summons also in substance the declaration. Now, in all but the simplest cases, a special pleader or a barrister must be consulted to draw the writ of summons, which must increase the expense very materially. The result of the employment of special pleading at this stage of an action, would also, he thought, be to increase litigation, by leading to the defence of actions, not on their merits, but upon ingenious objections to the validity of the statement of the plaintiff's claims. The
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clause involved a mere experiment, and he should oppose the making of that experiment.
MR. J. D. FITZGERALDsaid, that, finding the majority of the Irish lawyers in the House were opposed to him, be should not press the Amendment which he had suggested to a division.
Clause agreed to; as were also Clauses 11 to 31 inclusive, with some slight verbal amendments.
Clause 32.
MR. J. D. FITZGERALDsaid, that he must object to permitting service of the writ to be made at a man's house or place of business, or upon the members of his family, instead of personally as at present. This was especially objectionable when taken in connexion with the other clauses of the Bill, which enabled judgment to be obtained in a few days.
MR. WHITESIDEsaid, that this clause only permitted that to be done without the order of a Judge which could now be done with such an order. It would, therefore, simplify the proceedings and save expense, without exposing the defendant to any new danger.
MR. G. BUTTsaid, he would suggest that they should let the general law stand as it is in England; and with respect to cases of fraud, or going away to avoid service, there were subsequent clauses which would give perfect protection to creditors.
MR. WHITESIDEsaid, that an ejectment to strip a man of his entire estate might be served in the manner proposed under the general orders of the Court, and he could not see why a process for the recovery of a small debt should not be served in the same way.
MR. KEOGHsaid, he would suggest that the hon. and learned Gentleman might meet the objection suggested by the hon. and learned Member for Ennis, where persons were accidentally absent from their residence.
After a few words from Mr. CROWDER, and the ATTORNEY GENERAL, the word "actually" was introduced, by which it is rendered necessary that the party should be personally and actually within the jurisdiction of the Court, and the clause as amended was agreed to.
Clause agreed to; as were—
Clauses 33 to 37.
Clause 38 (That to every summons and plaint an affidavit in verification should be annexed),
The ATTORNEY GENERALsaid,

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the clause had relation to a much-vexed question, and to a matter upon which great division of opinion existed—among the profession it being held, on the one hand, that it was desirable to introduce such a provision into the Courts of Law, while others took the opposite view. He confessed he himself inclined rather to the former opinion, for he had the greatest possible objection to the multiplication of oaths, and he did not think that in the present instance their introduction was essentially necessary for the administration of justice. That, however, was not his only objection, for he believed that in many cases the operation of the clause would place plaintiffs and defendants in a position of very great difficulty. At the time, for instance, when a defendant might be called upon to verify his pleadings, he might not be in such a state of mind as to make the required affidavit, nor yet at the same time was he able conscientiously to succumb to the demands made against him. He quite concurred in the conclusion recently reported by the Common Law Commissioners, that the introduction of such oaths would only prove a snare for tender consciences, and would offer no obstacle whatever to the designs of unscrupulous persons; and the persons most likely to defend a bad action were the evil-minded and unscrupulous. He believed that the effect of the clause would be to render the taking of oaths a mere matter of form; and the moment you reduce an oath to be a formal thing, Parliament will be removing the objection to taking them on the part of the great mass of mankind, just in the same way as oaths were taken in that House. How many oaths were taken at the table of that House on the subject of qualification, which every one knew to be quite indefensible but for the sort of conventional morality by which their existence was held justified and excused? However, as considerable difference of opinion prevailed on the point, he should offer no very strong opposition to the experiment being tried in Ireland; but, as long as the result was in doubt, he should most certainly object to its enforcement in England.
MR. WHITESIDEsaid, he should feel very considerable regret if the Committee gave its assent to the clause upon the principle that an experiment was to be tried in Ireland which it was impossible to introduce into England. Speaking from experience, he was able to say that pleadings were oftentimes no more the allegations of
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the party whose they were supposed to be, according to the theory of the law, than they were the allegations of Prince Men-schikoff or the Grand Vizier; on the contrary, they were the mere firings off of one pleader against another. In former times, indeed, every man who told a he was immediately put into gaol; now-a-days, however, he should be much afraid, if such a practice prevailed, the country would be covered with prisons. The clause before the Committee, therefore, was directed against the evils of special pleading, which by the legislation of that day they had done more to demolish than had ever before been accomplished. The purport of the Bill was to encourage truth; make every person verify his pleadings by rendering it compulsory on him to state that which they contained he believed to be the fact. The code of New York distinctly recognised the practice he was contending for, and it declared that the Courts of Justice ought to be schools of morality, and if a different principle were sanctioned, that they would become the corrupters instead of the teachers of mankind. That, secondly, every man ought to be protected from false charges; third, that lawsuits were unjust to society, and if lawsuits were prevented that a benefit would be thereby conferred upon mankind. Fourthly, that if parties were not confined in their pleadings to stating what was the fact, no adequate reform in the law could be effected. In the Court of Chancery the practice was already allowed. ["No, no!"] Why, surely it was requisite to verify a Bill for an injunction by an affidavit? The Bill would deal out a death-blow to all the quips and quirks of law, and they would no longer behold counsel attesting the truth of statements which—with remorse he might say—they often had done, knowing in their hearts that they were perfectly untenable.
MR. KEOGHsaid, that, notwithstanding he did not believe the introduction of these affidavits would bring about the golden age anticipated by the hon. and learned Gentleman opposite, he would not oppose the clause, as it was one upon which considerable doubt prevailed, and the more so as his right hon. and learned Colleague the Attorney General for Ireland approved of its introduction.
MR. J. D. FITZGERALDsaid, as one who had some practical experience of the working of Irish lawmaking in reference to matters between subject and subject, he wished to suggest that agents should be

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allowed to attest the truth of pleadings in lieu of the plaintiff himself. He did not mean law agents, but parties acting for others in mercantile or commercial transactions. They were commonly much better informed as to the transctions in dispute than their principals, and their verification consequently would be of much more value. The value of his Amendment would be apparent in the case of an English merchant dealing with Ireland. His transactions were usually carried on by means of an agent resident there, and he might consequently he called on to speak to the truth of matters, the details of which he was wholly unacquainted with. He believed, therefore, that a provision such as he suggested, was absolutely necessary to meet such a case.
MR. NAPIERsaid, he would rather part with the clause altogether than consent to such an Amendment being introduced. He believed that the effect of permitting the party supposed to be best acquainted with the facts of any particular case to verify pleadings, would have anything but a tendency to advance the cause of justice in Ireland.
MR. HUMEsaid, he wished to trouble the Committee with a few observations, for the purpose of saying that he had never listened to a statement with more unfeigned satisfaction than to that in which the hon. and learned Gentleman opposite (Mr. Whiteside) had introduced the measure to the Committee; and he was rejoiced to find that the Bill had met with the support of Her Majesty's Ministers. It was exceedingly gratifying to find legal Gentlemen vying with each other in their endeavours to simplify the law, for he was quite old enough to remember when it was very different indeed. Time was when the only lawyer in the House that demanded legal reform was Mr. Michael Angelo Taylor, who, however, confined his efforts in that direction to an annual speech. He was most happy in expressing his cordial thanks to the hon. and learned Gentleman who had introduced the present Bill, and he only hoped, as Ireland had obtained justice in this matter, that Scotland's time was not far off.
MR. G. BUTTsaid, he believed the suggestion of the hon. and learned Gentleman the Member for Ennis to be quite superfluous.
The ATTORNEY GENERALsaid, he must beg to explain, in reference to what had fallen from the hon. and learned Mem-
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ber for Enniskillen (Mr. Whiteside), that his objection to the clause rested not upon any unwillingness to assist in the overthrow of the system of special pleading, but in an antipathy to multiplying oaths unnecessarily.
MR. J. D. FITZGERALDsaid, he would not press his present Amendment to a division. He must, however, persevere with the Amendment of which he had given notice—namely, to substitute the word "declaration," in lieu of "affidavit," in this and the remaining clauses of the Bill.
MR. GEORGEsaid, he concurred in the first part of the Amendment of the hon. and learned Member for Ennis, and he trusted that the hon. and learned Member for Enniskillen (Mr. Whiteside) would substitute a declaration in place of an oath. In respect to the other part of the Amendment, he scarcely thought that it could be carried out.
MR. WHITESIDEsaid, that everything that could reasonably be asked was provided for in the Bill.
VISCOUNT MONCKsaid, that this was a broader question than that of law; it was a question of morality. He thought that there was a great deal of morbid sentimentality about oaths. An oath, in his opinion, was only a solemn mode of pledging the conscience of an individual as to the truth of any statement. He Was of opinion that if they were to retain the system of affidavits at all, they were lowering the standard of morality by informing people that it was less binding on them to tell the truth when they were making a declaration than when they were taking an oath.
MR. CROWDERsaid, he should support the clause as proposed by the hon. and learned Member for Enniskillen. There was no doubt a class of conscientious persons who had scruples about taking an oath who did not fall within the class of persons for whom this Bill was intended. There was, however, a Bill already provided to meet their cases. Under these circumstances he thought it better to let the general law on the subject of oaths operate in this Bill.
The ATTORNEY GENERALsaid, he would suggest to the hon. and learned Member for Ennis the propriety of withdrawing his Amendment, as it was not worth while to press it in the present case. The objection which he (the Attorney General) had to the multiplication of oaths was, because he attached so much impor-

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tance to an oath in a Court of Justice he did not wish to have its sanctity lowered by seeing it applied to any case where it was not absolutely necessary.
MR. V. SCULLYsaid, he should support the Amendment of the hon. and learned Member for Ennis as the lesser of two evils, for he objected both to affidavits and declarations. In reference to the measure itself, he must protest against this experimental legislation in Ireland. The law officers of the Crown appeared to think that the measure would not do for this country, but said that it might be tried in Ireland—acting, as he supposed, upon the principle, Novum experimentum in corpore vili. Now he would even prefer bad law in common to both countries, than good legislation that was peculiar to Ireland alone. He would suggest that the Bill be referred to a Select Committee.
MR. J. D. FITZGERALDsaid, he would not press his Amendment.
Clause agreed to; as were also Clauses 39 to 62 inclusive.
Clause 63.
MR. J. D. FITZGERALDsaid, this clause provided that in certain actions against sheriffs and other magistrates the trial should take place in the county where the act complained of had been committed. This gave to magistrates a protection not enjoyed by other classes of the community: he should therefore move that the clause be omitted.
MR. WHITESIDEsaid, the principle of the clause had existed for centuries, and he only followed the law on the subject that had existed since the days of Charles I., and which was affirmed in 1849. He could not, therefore, consent to the omission.
MR. KEOGHsaid, he should support the Amendment. He saw no reason why the clause should be retained because it contained what had been the law for centuries. The same argument might be employed against the whole Bill.
MR. NAPIERsaid, if the clause was negatived, it would only leave the law as it now stood. The clause contained nothing but what was already the law of England as well as of Ireland.
The ATTORNEY GENERALwould only say that the law was a very bad one; and he saw no reason why it should be repeated in the present Bill.
MR. PHINNsaid, there was always a suspicion of partiality when magistrates were tried on the scene of their alleged
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offences, and he did not see that when they committed breaches of the law they were entitled to greater protection than others.
MR. J. D. FITZGERALDsaid, the law would not remain as it stood; for two of the old Statutes were repealed by the Bill.
The ATTORNEY GENERALsaid, if the law should remain as it stood in case the clause was omitted, there was no necessity to retain the clause at all; he should therefore support the Amendment.
Motion made, and Question proposed, "That the Clause stand part of the Bill."
The Committee divided:—Ayes 31; Noes 70: Majority 39.
House resumed.
Committee report progress.
The House adjourned at Ten minutes before Six o'clock.