COUNTY COURTS ACTS AMENDMENT BILL. (Hansard, 22 July 1856)

MR. GLADSTONE
said, that when the House went into Committee on the Bill now before them, he took objection, although not intending to oppose the mea- 1201 sure to what he thought a hasty proceeding, one which had not been duly considered and examined, and by which a charge of £170,000 a year would be imposed upon the public purse. He stated that such a charge ought not to be created without the House having previously examined into the state of the existing judicial establishments, in order to ascertain whether the country need be subjected to an additional burden on that account. The answer given to him on that occasion was, that the subject of the County Courts ought to be considered by itself, and that, although there might be ground for inquiry as to the judicial position of Westminster Hall, yet that constituted no reason why the boon which justice demanded in the extension of the benefit of the County Courts to the country should be withheld. As the House appeared favourable to the measure he did not divide upon it, although he retained a strong opinion as to the precipitancy of the measure. But what he chiefly wished to advert to now was the judicial establishment at Westminster Hall. It was a subject which never could be satisfactorily examined into, except by the direct action of the Government. All that a private Member of the House could do was to make an appeal to the Government to undertake the examination of that highly important question. That was the object which he had in view in rising on the present occasion. He felt he should not be justified on this occasion in pressing for any positive or definite answer on such a subject, but the question he wished to ask Her Majesty's Government was this—Whether, during the recess, Her Majesty's Government were disposed to make an inquiry into the state of the judicial establishment in Westminster Hall, and whether the present number of Judges sitting in Westminster Hall was essential, taking into review the immense relief which the Courts in Westminster Hall had experienced by the extension of the jurisdiction of the County Courts, and that at a very heavy charge on the country? An opportunity would be afforded during the recess for Government to make up their minds whether the establishment in Westminster Hall was more than adequate to the purposes required of it. Of course any reduction would be irrespective of the vested interests of the present holders of the official appointments connected with the judicial office. He should be very glad if his right hon. Friend the Secretary 1202 of State for the Home Department could give him any assurance on the subject.

§ SIR GEORGE GREY
said, he could not give any opinion as to whether it was practicable that a reduction might or might not be made in the number of the Common Law Judges in Westminster Hall. He believed, however, that his right hon. Friend was mistaken in supposing that there had been any diminution in the business of the Courts at Westminster Hall since the formation of the County Courts. It was true that a certain description of business had diminished on some of the circuits. If, indeed, the County Courts had jurisdiction over criminal matters the business of the assizes might be materially diminished, but that was not the case; although, therefore, the civil business might be less, still the duty at the assizes remained much the same. Besides, the increased demand of Judges on the circuits would make it impossible, he felt assured, to reduce the number of those functionaries. The county of Glamorgan loudly complained at having only one Judge at the assizes; but it had been represented to him that no more than one Judge could be spared for that circuit without extending the employment of Judges and counsel far into the vacation. It was true there might be a new distribution of the circuits, by which a greater quantity of business might be got through with a less number of Judges; but that was a subject which demanded mature consideration.

§ MR. MURROUGH
said, he would propose to leave out Clause 30, and to insert the following clause:— Where an action of contract is brought in one of Her Majesty's Superior Courts of Record to recover a sum not exceeding £20, and the defendant in the action suffers judgment by default, the plaintiff shall recover no costs (except in cases where he dwells more than twenty miles from the defendant, or an officer of the County Court shall be a party), unless, upon an application to a Judge of such Superior Court, he shall otherwise direct.

THE ATTORNEY GENERAL
said, he must oppose the admission of the clause.

§ COLONEL WILSON PATTEN
said, he wished to propose the following clause:—
All the provisions of this Act applicable to 1203 Superior Courts and Judges thereof shall apply to the Court of Common Pleas at Lancaster and Court of Common Pleas at Durham, and the Judges thereof respectively being Judges of one of the Common Law Courts at Westminster; and all the said provisions applicable to masters of Superior Courts shall apply to the respective Prothonetaries of the Court of Common Pleas at Lancaster and Court of Common Pleas at Durham, and their respective deputies acting in the execution of the duties of such officers; provided that any writs of certiorari to be issued by the order of such Courts, or of a Judge thereof, shall be issued out of the Chanceries of the Counties Palatine of Lancaster and Durham respectively, and shall be made returnable into the said Court of Common Pleas at Lancaster and Court of Pleas at Durham respectively, in the same manner as other writs of certiorari of such Counties Palatine respectively.

THE ATTORNEY GENERAL
said, he would not oppose the insertion of the clause.

§ MR. HADFIELD
said, he would now beg to propose the following clause:— Clerks articled to attorneys or solicitors may, after serving two years under articles, and with consent of their masters, appear as advocates; the clerk to any attorney or solicitor who has already been or who hereafter shall become articled to such attorney or solicitor, and who may have served two years under his articles with such attorney or solicitor, may appear as advocate on behalf of any party to any proceedings in the County Court, on producing to the registrar of the Court his articles, and also a certificate from his master that he consents thereto: and the attorney to whom such clerk is or may be articled shall be entitled to the same fees as if he had personally attended the same Court, provided that the clerk shall be subject to the same rules and regulations as attorneys now are or hereafter may be subject to.

THE ATTORNEY GENERAL
said, he objected to the clause, because those Courts were not intended as schools in which a professional education was to be acquired. There were no other Courts in which students were allowed to exercise the functions of an advocate, such a thing would not be allowed in Westminster Hall. Besides, attorneys were officers of those Courts as well as of the Superior Courts, and those Courts possessed a species of control over them; but clerks would not be under the control of those Courts.

§ MR. HEYWOOD
said, he should support the clause, because he thought it desirable that the young men referred to should have an opportunity of learning their business.

MR. STAFFORD
said, the proposal reminded him of what an hon. Member of that House once stated, that he was determined to learn the art of public speaking, as it was the only art he could learn at the people's expense.

§ SIR JAMES GRAHAM
said, he thought a question might be raised in favour of allowing the agents of the parties to appear, but he was certainly not in favour of extending that indulgence to attorneys clerks. A suitor had the right, either to appear to state his own case, or to employ another to do so, but that other person must he either an attorney or barrister. For the reason stated by his hon. and learned Friend the Attorney General, he thought it highly desirable that a person who represented a party in a suit should be under the control of the Court. If that rule were relaxed it should not be in favour of attorneys' clerks, but rather in favour of the private agents of the parties concerned. On the whole, however, he thought it better that none but professional men should be employed.

§ MR. CRAUFURD
said, he should be glad if that were the law, but unfortunately it was the case that not only might a party appear in the County Court by himself, but he had a right to appear by "counsel, attorney, or agent." Under the term "agent" a set of persons calling themselves "County Court advocates" had crept in, who were wholly unacquainted with the law, and whose conduct was highly detrimental to the efficiency of those Courts.

§ MR. MULLINGS
said, he thought there was some misunderstanding about the meaning of the word "agent." He understood it had been construed as meaning the agents or stewards of the parties, and not strangers tendering their services.

MR. GLADSTONE
said, it was most desirable that the law should be clearly understood on this point. He had received many complaints that agents had not been allowed to appear. Many persons, for instance, wished that their own agents should be allowed to appear in cases of small demands. It might however be difficult in some cases to distinguish between a permanent agent and an, agent pro hâc vice. He admitted that to sanction the latter description of agent might open the door to gross abuses. But, in the case of small claims, a refusal to hear an agent might be an actual denial of justice.

§ SIR ERSKINE PERRY
said, he believed the law to be that a party could only appear by a professional agent, or by an attorney, or by a gratuitous agent. He hoped no rule would be laid down which should prevent the employment of a gratuitous agent. It was quite clear that the Judges of the County Courts had ample power to prevent any abuse in that respect.

THE ATTORNEY GENERAL
said, by referring to the Act he found that the Judges of the County Courts could not allow any person to appear as a paid advocate for any party unless he were an attorney or a barrister or authorised by the Judge of the Court.

MR. FITZROY
said, he understood the practice to be to admit an agent to appear to the character of a witness rather than as an advocate. He was allowed to state his party's case, but he was not permitted to plead or argue upon it.

§ MR. HADFIELD
said, he would not divide the House.

§ MR. HADFIELD
said, he would now beg to move the insertion of a clause enacting that one attorney might act for another attorney in special cases.

§ MR. CRAUFURD
said, he was opposed to the clause, and hoped the Attorney General would not consent to it as he considered that it would open the door to a class of proceedings very undesirable. The effect of the clause would be that no respectable attorneys would act personally in those Courts, but would delegate their business to a class of persons who would not be worthy of the public confidence.

THE ATTORNEY GENERAL
said, the question had been very fully considered already, and the House had come to the opinion that the change proposed ought not to be allowed.

§ MR. ROEBUCK
said, it appeared to him that the effect of the clause would be to break down the distinction now existing between attorney and barrister. If it was determined to destroy that distinction let it be done distinctly and avowedly, and not in that indirect manner.

§ MR. HENLEY
said, there was growing up a species of attorney-advocate, and it was doubtful whether it ought to be encouraged. Some men possessed a facility of talk, or what was vulgarly called "the gift of the gab," and those persons would be intrusted by other attorneys to manage their business in the County Courts. He did 1206 not think it was desirable that that nondescript animal should be allowed to grow up.

THE ATTORNEY GENERAL
said, he would now propose to insert, after Clause 5, the following clause— Notwithstanding section 3 of the Act of the l3th and 14th years of the reign of Her present Majesty, chapter 61, a Registrar or Assistant Clerk appointed since the passing of that Act may reside out of the district of the Court or Courts for which he shall have been appointed, if the Lord Chancellor, or, where the whole of the district is within the duchy of Lancaster, the Chancellor of the Duchy, shall, in the exercise of his discretion, on special grounds, and on such terms as he shall think fit to impose, grant permission for that purpose.

§ SIR JAMES GRAHAM
said, that the original Bill contained no restriction as to the residence of the Registrar, but a clause of prohibition was afterwards inserted in the 16 & 17 Vict., and he was surprised when he found a clause of relaxation in the present Bill. If the hon. and learned Attorney General would consent to amend the clause so as to provide that the residence of the Registrar should be within three or four miles of his ordinary place of business his objection would be very much diminished, if not removed.

THE ATTORNEY GENERAL
said, he was willing to limit the distance of the residence of the Registrar to within six miles of the district.

§ SIR ERSKINE PERRY
said, he thought the Registrar should have his residence near the Court, that the suitors might have access to him in cases of emergency,

MR. FITZROY
said, no case of necessity had yet been made out for the proposed change, nor had it been shown by his hon. and learned Friend the Attorney General why the Registrar should live out of his district. He believed that the alteration was simply to meet one solitary instance, and that, he apprehended, was hardly sufficient ground to justify the House in reversing a decision come to many years ago.

§ MR. ROEBUCK
said, he had discovered that in Clause 10 an Amendment had been introduced, of which no notice was previously given. It related to the compensation 1207 to be made to the clerks whose business was going to be taken away. That compensation had been raised from one-fourth to one-third without any notice whatever. The House had gone through some of the forms, but not the whole. He believed that no alteration could be made in a Bill on a third reading without notice having been given.

§ MR. SPEAKER
said, the hon. and learned Gentleman was mistaken. The rule of the House was, that no clause should be inserted on the third reading without notice; but an Amendment might be made without notice.

§ SIR JAMES GRAHAM
Then, has the Amendment passed

§ MR. SPEAKER
Yes.

§ SIR JAMES GRAHAM
Is it not open for the House to discuss it?

§ MR. SPEAKER
No.

§ SIR JAMES GRAHAM
Then I cannot sufficiently express my surprise and sorrow.

§ MR. SPEAKER
said, that before he put the question that the Bill do pass, he wished to know whether the alteration which had been made from one-fourth to one-third in the compensation to certain clerks went beyond the charges imposed by the existing County Courts Acts, because if it did the House could not agree to it?

§ MR. WILSON
said, that by this Bill Parliament was repealing an Act by which the clerks were entitled to a large salary. He submitted that, whether the Bill proposed to retain one-third or one-fourth of the existing salary, it would not be an increase of charge on the public. It was a charge to be paid out of fees already imposed. The reason of the alteration from one-fourth to one-third was, that originally a discretionary power was given to the Government as to the amount to be paid to those clerks; but when it was thought more advisable to fix an absolute sum, without any discretion being left to the Government, then it was thought that one-third would be a fair arrangement. Those men had been induced to abandon their private practice in order to devote their services to the public. Supposing a clerk to be now receiving £600 a year, by the Bill it was proposed that he should only receive, £200 a year; and the mere possibility of returning to his private practice was a thing more easily spoken of than accomplished.

§ SIR JAMES GRAHAM
said, he was 1208 perfectly sure, from his knowledge of his hon. Friend, that the insertion of the Amendment changing the rate of compensation from one-fourth to one-third, without notice, was by inadvertence. By the original Bill, however, it never was contemplated that a plurality of offices should be established. He (Sir J. Graham) took shame to himself in not having foreseen the possibility of that plurality of offices. It was contrary to the spirit, if not the letter of the Act. It was now thought desirable to buy out this abuse by compensation, and he thought a compensation of one-fourth, sanctioned as it had been by the Committee, was most ample, He had that morning received an anonymous letter from Dewsbury, stating that, if any argument were wanting to show the serious inconvenience arising from non-resident chief clerks, it was to be found in the fact that the clerk for the towns of Dewsbury, Pontefract, and another large neighbouring town, was residing in Leeds, and that the duties were delegated to a young man, the chief clerk attending only on Court days. For those duties he received fees amounting to £2,200, out of which he paid about £500 for salaries to clerks, retaining a net income of £1,700 a year, a sum exceeding the salary of any County Court Judge in the kingdom. He should wait with some anxiety to hear the decision of Mr. Speaker, as to whether the advance of the amount of compensation from one-fourth to one-third was obligatory on the House or not.

§ MR. SPEAKER
My decision will have no reference whatever to the merits of the ease now before the House. It will be strictly of a technical character. In ordinary cases it is not competent for any person to propose a greater charge on the revenue of the country than the amount which has passed the Committee. The only exception to that rule is, where a Bill is introduced to amend an Act which has passed in a previous Session, and which imposed a higher charge than is intended to be proposed by the Bill before the House. When the Amendment, therefore, was proposed by the hon. Gentleman (Mr. Wilson), it was impossible for me to know whether the increased amount of compensation came within the ordinary rules of the House, or whether there was such a charge created by the Act passed in a previous Session as would cover the amount proposed by the hon. Member. But, I now understand, there was no charge whatever 1209 under the old law. If I am right in that supposition, then no proposition can be entertained on the Report or third reading to exceed the limits fixed by the Committee. Therefore, I consider the Amendment which has been introduced into the clause is informal, and one which ought not to have been made. It is therefore cancelled.

§ MR. HENLEY
said, it was quite clear that it was not intended there should be more than one clerk to each Court. But no check having been enacted, those men had got a monopoly of clerkships in every district.

§ MR. WILSON
said, that, with reference to the anonymous letter read by the right hon. Baronet (Sir J. Graham), there was no doubt it was entirely untrue. It was impossible that any man could have received such a salary. It would have been entirely illegal.

§ MR. CAYLEY
said, he thought the clerks who would be displaced by the Bill would be very hardly used.