§ Order for Committee read.
§ LORD JOHN RUSSELL
said, he had to present a petition signed by 110 out of 116 proctors of Doctors' Commons, representing that as the Bill now stood their occupation would be altogether destroyed, and that they had invested large sums in qualifying themselves for their offices, and praying the House to grant them just compensation.
§ SIR JOHN TROLLOPE
said, he had to present a petition from bankers, solicitors, and others of Lincoln, against any limitation with regard to the amount of property for which probate might be granted in the District Courts.
§ Petitions to lie on the table.
§ House in Committee.
THE ATTORNEY GENERAL
proposed four new clauses, the first providing that the Court of Probate may cause questions of fact to be tried by a jury before itself, or direct an issue to a court of law; the second defining the powers of the court for the trial of questions by a jury; the third providing that the question shall be reduced into writing, and that the judge shall have the same autho- 68 rity as a judge at Nisi Prius; and the fourth enabling the court to direct issues to try any fact.
§ The Clauses were agreed to, and added to the Bill.
THE ATTORNEY GENERAL
said, that he had now, in conformity with the promise made by him when the House was last in Committee on the Bill, to move the addition of the following proviso after Clause 41:—That no probate or letters of administration shall be granted by a district registrar where the deceased was at the time of his death possessed or entitled, either beneficially or as a trustee, of or to any Government stock, funds, annuities, or securities, or any stock of the Governor and Company of the Bank of England, or of the East India Company, or of or to any stock or shares of the capital of any other company, corporate or Unincorporated, of which stock or shares the transfers are usually either made, or registered, or perfected, by entry in books kept in London or elsewhere within the Metropolitan District; and any probate or letters of administration granted contrary to this provision shall be subject to revocation by the Court of Probate; but all acts done under the probate or letters of administration before revocation in respect of any property other than any such Government stock, funds, annuities, or securities, or any stock of the Governor and Company of the Bank of England, or of the East India Company, or any such other stock or shares as aforesaid, shall be as valid as if such probate or letters of administration had been lawfully granted; and for the purposes of this provision, the Metropolitan District shall include all places within the, jurisdiction of the Court of Probate not included in the districts specified in Schedule A to this Act.And also the following proviso:—Where any probate or letters of administration has or have been granted contrary to the provision lastly hereinbefore contained, it shall be lawful for the Court of Probate either to revoke the probate or letters of administration granted by the district registrar, and to make a now grant, or to confirm such probate or letters of administration, under the seal of the principal registry of the Court; and any probate or letters of administration so confirmed shall be as valid as if originally granted by the Court; and, in the case of any probate or letters of administration, with the will annexed, granted contrary to the said provision, it shall be lawful for the Court to cause the original will to be brought up from the district registry, and deposited in the principal registry thereof.The effect of those provisos would be, that with regard to property locally situated in any District, and to any amount, the probate granted by the district registrar would be sufficient for all purposes; but that when it was necessary to produce a probate in London in order to effect a transfer either of funded property, stock 69 of the Bank of England, or of the East India Company, or shares in any railway company, it would be requisite that the probate granted by the district registrar should have attached to it the seals of the metropolitan office, in addition to those of the district registrar; so that property of that description would not be transferred on the entire credit and faith of the probate of the district registrars. Supposing, therefore, there was a small railway, the head office of which for the transfer of shares lay in any registrar's district, it would not be necessary, in case of an estate comprehending shares in such railway, that there should be a metropolitan probate. If, on the other hand, a testator possessed property in any of the large railway companies, such as the Great Western or the Great Northern, the shares of which were principally transferred in the offices of the companies in London, then it would be necessary to have a metropolitan probate. He trusted the proviso, as he had described it, would be found to correspond with the agreement he entered into with the Committee when the Bill was last under consideration.
§ SIR JOHN TROLLOPE
said, the hon. and learned Attorney General had stated that these new provisos had been brought up under an agreement he had made with certain hon. Members who took part in a former discussion. He (Sir J. Trollope) must repudiate altogether the notion of being a party to any such proviso. The course which he and those who acted with him took on that discussion was to object to any limitation, and that principle was confirmed by a considerable majority of the Committee. So far as he was concerned he would readily assent to the proposition that probates passing funded property should be counter-sealed in London; but he could not conceive the necessity why persons residing in the provinces and holding probates in reference to any species of share property, that happened to be corporated or unincorporated in London, should be subject to the expense of having such probates counter-sealed in the metropolitan office. He believed no instance had been quoted either by the hon. and learned Attorney General or any other hon. Member of the commission or attempted commission of any fraud with regard to the stock of either the Bank of England or the East India Company in the provinces. The only notorious case of that kind was the fraud of Fletcher on the Bank of Eng- 70 land, but that was wholly concocted and carried out in London. There was scarcely a small tradesman or farmer in the country who did not hold a share in some joint-stock company or other; why should his will be proved in London when it could be done just as well near the home of the testator? The House had confidence in the registrars to be appointed by the Commission; and though he conceded the protection required as to Bank or East India stock, he objected to the extension of it to the stock or shares of other companies. He thought that the Clause which the hon. and learned Member for East Suffolk (Sir F. Kelly) had on the paper was more in accordance with the wishes of the Committee, and he would therefore move that this clause be negatived.
§ MR. SALISBURY
observed, that the London and North Western, the Great Northern, the Eastern Counties, and the Great Western Company were not confined to London; they took in almost the whole country, and it was absurd that shareholders in the provinces should be called upon to go to the double expense and trouble of obtaining probate in London.
§ MR. HENLEY
said, he had always protested against shares being placed in the same category as the funds. He had never heard any share company express a wish to that effect; the Bank of England might desire that all their business should be done in London, but joint-stock companies did not, and that was a sufficient reason why shares should be struck out of this clause. Leaving the matter optional, that would be the best mode of proceeding; but at all events he hoped the clause; would be so amended as to leave out the part relating to shares. If everything were to be done twice, there would be double trouble and double expense; but it was doubtful if it would give double security.
§ MR. MALINS
said, he fully concurred in what had fallen from the hon. Member for Lincolnshire (Sir J. Trollope), and therefore objected to the clause, which was founded on no principle or reason. As the Bill was originally framed the country probate was limited. The House negatived that, the main principle of the Bill; and now the hon. and learned Attorney General proposed that the country probate should not be good to transfer stock or shares. That was a limitation of jurisdiction without any just reason. Why, as to railway 71 companies, it often happened that their principal places of registry were in the country, as at York or Derby. Where was then the necessity of bringing the probate to London? The testator might have half-a-million of money in a bank at York or Derby, and no London probate would be required; but if he had £100 in shares of a railway having an office in London, probate in London would be required. Take another illustration of the absurdity of the clause: a man possesses a few shares in the London and Westminster or the Union Bank of London; in that case the country probate would be good for nothing, but he might have thousands of pounds deposited in the particular bank, and in reference to that the country probate would be good. Was not that a manifest absurdity? And would the House adopt it, merely to get the Government out of a difficulty? It would reintroduce the vicious principle of bona notabilia, which caused the whole evil of the old system. The clause was opposed equally to reason and to the principle of the measure, and was a violation of common sense. The Bank of England only required that proper care should be taken. Did his hon. and learned friend hold out to the Committee that the local accounts were not to be trusted to the local courts, or that those courts should not be allowed to give authenticity to a will? If so, the Bill was useless. But if they were to give authenticity in one respect, they ought to be allowed to do so in all cases. Though he advocated that those whose business was destroyed should be compensated, yet if they could not be protected otherwise than by such a clause as this, he thought they must consider their days as numbered. The clause, in his opinion, was altogether bad, and he should oppose it.
said, the clause had been evidently framed on the principle of giving additional protection to certain joint-stock companies in London. The bankers of London were at present in the habit of acting only on probate in London, and they felt great interest in this Bill, and it was their opinion that there was no reason for making a distinction between the Bank of England and the other banking companies of the metropolis. The transfer of stock and shares was a process that required time, but the transfer of money was effected at once, and, therefore, if additional security was to be given in the shape of probate in the London court, he thought it 72 should be extended equally to all joint-stock companies and dealers in money. The same principle applied to all, and it ought not to be confined to the Bank of England.
§ MR. WIGRAM
said, that he thought that a special claim might be made out for the Bank of England and the East India Company. The stock of those establishments was, in reality, Government stock, and the tranfers were so numerous that it would be desirable to have one uniform probate. There should be one uniform court, and one seal to ensure regularity, and it was not on the ground of uniformity only, or as a matter of protection, but in order that the public might have full confidence in the tranfers at the Bank that he thought this clause was necessary. With respect to railway shares registered in London and other places, he did not see what ground there was for making a valid distinction between them. He, therefore, would suggest that the clause should be confined to Government stock.
said, the liabilities would fall on the Bank of England, and not on Government stock in the case of fraud.
§ MR. WIGRAM
replied, that it would be better that there should be one general Court of Probate for the Metropolis.
§ SIR JAMES GRAHAM
said, he had hitherto been silent during the discussions upon this Bill, and he would frankly tell the Committee why. Last year he ventured to differ somewhat from the hon. and learned Attorney General in the progress of a similar measure; his hon. and learned Friend reprehended him so severely upon that occasion, and he had retained so lively a recollection of the attack made upon him that he had not dared to express an opinion this Session. But he was a humble follower of the Attorney General in the course taken by him in the Commission to which frequent reference had been made. On one occasion he voted with the Master of the Rolls and the Attorney General against the rest of the Commissioners upon a point which appeared to him of great importance. The majority naturally prevailed, and both the measure of last year and the present Bill departed from the principle which he, under the auspices of the Attorney General, ventured to support. He was then, and still remained, decidedly of opinion that the same tribunal to which the duty of granting probate was confided ought also to construe the instrument. That, he thought, would conduce both to 73 economy and the public interest. With the Attorney General and the Master of the Rolls, he likewise thought that that tribunal should be a branch of the Court of Chancery; but the horror of the very name of Chancery so appalled the public and the House, that it was now utterly impossible to give effect to that proposition. He considered it very doubtful whether the court now proposed—simply a Court of Probate without the power of construction—was a competent tribunal; but that part of the subject, he thought that the hon. and learned Member for Wallingford (Mr. Malins) gave a great deal too much of indirect praise to the proposition that the local probate should be limited to £1,500 when he designated it as a principle. There was no principle in it whatever. More than a half of all human affairs depended upon compromises, and, to let out the secrets of the prison-house, he might state that the proposition in question was neither more nor less than a compromise, into which the idea of principle did not enter at all. Some members of the Commission were for fixing the limit at £1,000, others at £3,000, and £1,500 was taken as a compromise. He had intended to support the clause as it originally stood in the Bill, and, if the Government had sought to restore it, he should have held himself bound by what took place in the Commission, and voted for its restoration. But that was not the question before the Committee, for the Government having consented to an unlimited power of probate in the local districts, that question was set at rest. Now the system of Scotch banking prevailed to a great extent on the Borders, and it was very common for a shopkeeper or a small capitalist to confide his money to a joint-stock bank. A man in that position might deposit £1,000, bearing interest in the Carlisle bank, and, at the same time, possess stock to the value of £200. As he understood the clause before the Committee, while the local probate would be applicable to the deposit, it would not apply to the stock, which would require a metropolitan probate. If the local probate would cover the £1,000 deposit, he saw no reason why it should not equally cover the £200 of stock. The practice of the Bank of England, as he understood it, was very sound. The production of the probate elsewhere, whether at a county bank or at the place where railway shares were deposited, was conclusive, and the transfer immediately took place. But that was not 74 the practice of the Bank of England. There greater caution was exercised. The probate was required to be left in their hands, and the parties must act through a broker. Therefore in the Bank of England the probate was tested by a severer scrutiny than in any other banking concern throughout the kingdom. A probate in common form was neither very mysterious nor very difficult. It involved the simplest mode of proof that any one capable of judging of evidence could be asked to institute. Assuming the statement of the hon. Member for York (Mr. Westhead), as to the immense sums constantly passing under probate at Chester and York without fraud or difficulty, to be perfectly accurate, that fact would sustain the opinion of the House that probate to an unlimited extent might be safely allowed in the country. If then the absence of fraud was a justifiable, ground for conferring an unlimited power of probate on the local districts, why was it not a justifiable ground for extending the same power to the country registrars in regard to stock? The noble Lord at the head of the Government acted wisely in yielding to the distinctly expressed opinion of the House the other night against limiting the amount to which local probate should extend. The only other question which remained was as to the compensation to be made to the London proctors. He Knew not whether those gentlemen thought that this clause would materially affect their claim to compensation; but he had often said, and he now repeated, that a great measure of legal reform ought not to be retarded by the consideration of what was due to the individuals who might suffer from its adoption. Therefore his advice would be to pass this Bill in the form which they believed to be most conducive to the public interest; and if the change operated detrimentally to the London proctors, let their claims be dealt with in a just, fair—aye, and liberal spirit. He trusted he should not be again reprehended by his hon. and learned Friend for what he had ventured to state on this subject. On the whole, he should be sorry if the Government pressed them to a division on this clause. The principle which induced the noble Lord at the head of the Government to give way the other night ought to induce him to give way in respect to this clause; and if this clause; were withdrawn, nothing would remain to be considered but the compensation due to the London proctors, which ques- 75 tion also, he hoped, would not be suffered to retard the measure.
§ SIR FITZROY KELLY
said, he regretted that they had lost an opportunity for trying the experiment of a fusion of law and equity, by conferring on one great court the power of dealing at once with the questions of common law and equity as far as they came within the scope of its jurisdiction. Although the Bill comprised much that he did not strictly approve, still it was so loudly called for by the country, and contains so many provisions calculated to improve the administration of the law that he would cheerfully concede much for which he would have struggled, had he been adequately supported, in order to secure the passing of this measure in a form that would entitle it to the approval of the House find of the country. With regard to the particular clause under discussion, they were not called upon to consider whether the case of the Bank of England stood upon special grounds, and should be dealt with differently from any other depository of property, but whether the jurisdiction proposed to be conferred on the country District Courts in relation to stock or shares should be altogether taken away. This clause was framed with a view to guard against the danger of fraud or irregularity in granting probate and administration by those courts. But having examined this question attentively, he was convinced that this apprehension of fraud or error, sufficient to justify the introduction of a clause like the present was wholly chimerical. The hon. Member for York (Mr. Westhead), the other evening told them that the country Courts had long dealt with wills affecting property amounting to hundreds of thousands of pounds, and yet that in no one instance had fraud, forgery, or malpractices of any kind been detected so as to throw the slightest doubt on the propriety of conferring unlimited jurisdiction on the country districts. The Bank of England, having under its control £800,000,000 of public property, might justly be considered in a different position to other banks, but not because it was exposed to greater fraud or danger from fraud. It should be remembered also that they were not treating of contentious cases, but only of the ordinary cases which happened every day; and the right hon. Gentleman (Sir J. Graham), had truly stated that there was no difficulty attending the ordinary probate of a will. An unopposed will was taken 76 by the parties interested to a competent person, who looked at it to see whether it had been properly executed and attested according to the Statute. If the Statute had been duly complied with, probate might be granted at once. If there had been any slight error or irregularity the country registrar would know perfectly well how to deal with it. He thought too that the apprehension of danger with respect to this description of property was fallacious. The only forgeries upon the Bank of England were those committed by Fletcher some years ago, which took place through the London Courts; but such things had not been heard of since, owing to the wise measures which were adopted after that event. The change proposed would strike at the very principle of the Bill, and therefore with respect to the clause itself, he was of opinion that it would be better to omit it altogether, and to allow all descriptions of property, with the single exception of trusts, to be dealt with the country Courts. Although it was somewhat in anticipation of discussion on future clauses, he could not help repeating that the Bank of England stood on a totally different footing from any of the institutions, not only on account of the magnitude of its operations, but because it was peculiarly bound by Act of Parliament.
THE ATTORNEY GENERAL
said, he hoped the Committee would favour him with their attention for a short time, while he explained how this matter really stood; it would be in the recollection of the Committee that the Bill which he introduced last Session was founded upon a different principle. It was his opinion that all wills should be admitted without limit or distinction, and be received in the offices of the district registrars for the purpose of probate. He sought to combine the principle of economy with that of unity, by requiring that papers when received in the country should be forwarded to the Metropolitan office for registration, a proceeding which would cause but few hours' delay, even from the remotest part of the country, and but little expense. The Bill of last Session was undoubtedly framed upon the principle which the right hon. Baronet the Member for Carlisle (Sir J. Graham) had approved. The House would recollect that he proposed to abolish altogether the distinction in favour of the London proctors, and to open a new and enlarged court with complete powers to deal with all questions of law and equity. He also proposed to 77 give to the London proctors that compensation which they then rejected, but which now, through the medium of the hon. and learned Member for Wallingford (Mr. Malins), they were so desirous to secure. How had that Bill been met! None were so loud in their opposition as the hon. Member for Wallingford and the hon. Baronet the Member for South Lincolnshire (Sir J. Trollope). They asked for a Bill framed on the Commissioner's Report. "Give us that," they said, "and we will support it." Unfortunately he had trusted to that assurance. A Bill was brought in at framed upon the Report of the Commissioners, and then, to his utter surprise, the hon. Member for South Lincolnshire, who was the organ of his party upon that occasion, turned round and said there was no principle in the limitation of £1,500. As the hon. Baronet the Member for Carlisle had already stated, the limitation of £1,500 was undoubtedly a departure from the true principle, but, as he (the Attorney General) had stated the other day, it was a sacrifice of principle in order to obtain something which was imagined to possess great good and to be a general benefit. Well, the Bill was drawn upon the footing of that compromise, and when he was, in consequence, pressed in Committee to justify the limitation it contained, he frankly stated that his opinion was then, as now, in favour of a different rule. When, therefore, his noble Friend at the head of the Government, observing that the Committee were of opinion that the limitation was a departure from principle, yielded to the general opinion of the Committee, he was only adopting the course of which he (the Attorney General) had always been in favour. But then there arose this very important question—a question to which he requested the serious attention of the Committee, because they were the guardians of the people of England, and they must give a reason for what they were about to do. They were about to deprive the people of England of a very great protection and a great security; and he would proceed to endeavour to show them how. But then arose an important question, whether the House of Commons, who were the guardians of the people of England, were not about to deprive them of a great protection and security. The hon. Member for York (Mr. Westhead) gave instances of property to a large amount, which, he said, had been proved without question in the district courts, but then the 78 hon. Gentleman, it must be remembered, spoke of the Metropolitan Court of York and the Probate Court of Chester. These were not fair instances, because the Metropolitan Court of York had always had experienced officers and an array of proctors and advocates, and experienced men were also to be found at Chester. He did not wonder, therefore, that wills comprehending property to a great amount had been proved without question in both those Courts. But this Bill established about forty offices in various parts of the country, at any one of which property to any amount might be conclusively proved. There was an extremely technical minutely-word-ed law, which laid down an iron rule as to what should be the character of the document to be proved. That document must be examined to see if it corresponded with the rules laid down by the Statute, and that examination required legal skill, great accuracy, and considerable experience. The question, therefore, now to be decided by the Committee was, whether the wills of the people of England were to be submitted to a competent or incompetent tribunal? [Cries of "No, No!"] That murmur was unnecessary unless it could be made out to the satisfaction of the House that the single officer whose constant attendance they could never expect to secure, and who would perform his office by an incompetent deputy ["Oh!"], constituted a competent tribunal to decide upon questions of so much importance; for they must remember, that the moment probate was granted, no inaccuracy or insufficiency of the document could be considered. The right hon. Gentleman (Sir J. Graham) supposed that there would be some security by the probate copy being left at the Bank of England. But from the copy of the will, for anything that would appear to the contrary, it would seem that the will had been written without erasure, alteration, or interlineation, and that its attestation was regularly executed and authenticated, every part of it. In short, nothing would appear on the probate copy inconsistent with the supposition that the original document was in conformity with all the provisions of the law, and therefore, this copy would be no protection to any party. A competent judicial officer was required to examine the original instrument, to ascertain that it complied with the law, and to stamp it with the character of a document that ought to be admitted to probate. Now, he (the Attor- 79 ney General) had no confidence, nor would any lawyer, who had examined this subject, have any confidence that the problem would be always solved by the person to whom this business was committed in the district office. He admitted that he was indebted for a good deal of his present argument to his hon. and learned Friend (Mr. Malins), when he vindicated upon a former Bill the right of the London proctors to compensation. Times were now changed, and with them were changed the mind, judgment, and arguments of his hon. and learned Friend. He, (the Attorney General) was afraid that if the Bill passed without his proviso, the House and the country would ere long be startled by the discovery of some great frauds, and the House would then discover that it had subjected the probate to a most insecure and unsafe test of examination. This was the warning that had been given by every experienced person who had been examined before the Commissioners, and they had arrived at the conclusion that all wills ought, for greater security, to be proved in the Metropolis. This principle had been departed from in wills of small amounts, limited to £1,500. He had no particular feeling on the subject, but he should be glad to bring back the Bill to the form which his hon. and learned Friend (Sir F. Kelly) and himself had endeavoured to embody last year in the Bill which it was found impossible to carry. But if the Committee adhered to its decision, he (Sir R. Bethell) was undoubtedly driven to this admission—namely, that he could not point out any distinction between a will which would affect £5,000 worth of stock transferable in the country and £5,000 transferable in the metropolis. The distinction he had endeavoured to draw the other day was, between property which could be got possession of instantly, and without any overt act, and property which could not be realized except through the medium of a public sale—a distinction, in short, between funded stock or share property and agricultural stock or produce. The Committee did not seem disposed to abide by that distinction, and accordingly it had now been proposed that the line should be drawn between property which required an act to be done in London and property the transfer of which might be completed in the country. The distinction was not, perhaps, justified by the princple of the Bill, but it was necessary to draw the line somewhere, and it was probable that some cases on 80 each side of the line might approximate very nearly together. Where parties, acting upon the will, must come to London to obtain and realize the property, he thought there would be no hardship or difficulty in saying that the will must be brought to London to be proved. These were the grounds upon which the Government, giving up their own opinion upon the details, had adopted the principle laid down in the Report of the Commissioners, from which the Committee had departed. The question now was, whether the Committee would make the country probate give a title to every description of property, or whether they would require the protection of a Metropolitan Court in certain cases. That was a proposition which it was for the Committee to decide, and there could be no doubt that it was one which very greatly affected the interest of the country. Far be it from him to use any language that might be represented as intended to intimidate the Committee; but he could not refrain from observing that this great radical change must be accompanied with other changes in the Bill,—changes so great as to place the measure in imminent peril, and probably render it impossible to carry it in another place.
§ SIR JAMES GRAHAM
had listened with the utmost anxiety to the Attorney General, and with an earnest desire to be guided by him in the vote which he was about to give; but he must say he had left him very much in doubt. He had said something about not wishing to intimidate the Committee—an idea which he (Sir J. Graham) was sure he never entertained, when he stated that the rejection of this clause might lead to the withdrawal of the Bill; but he thought it would be the duty of the hon. and learned Attorney General, occupying the high station he did as counsellor to Her Majesty on all questions of Law Reform, if he was of opinion that the decision which the House arrived at the other evening would have the effect of transferring from competent Judges and competent Courts to incompetent Judges and incompetent Courts the business connected with the probate of wills, to arrest at once the progress of that Bill—not with the view of intimidating the House, but in the simple discharge of his duty. More than that, he would say that the noble Lord at the head of the Government, naturally consulting the Attorney General, ought not to have given way on a former occasion when this Bill was before the 81 House. The very arguments which the hon. and learned Attorney General had used with reference to the character and extent of the property involved, were the arguments that in the Commission prevailed with him to limit the amount of probate in the local Courts. Those arguments were deduced from the evidence taken before the Commission, and in his mind they were conclusive against the decision which the House arrived at the other evening. He was quite at a loss to know whether it was the intention of the hon. and learned Attorney General to press this clause. From those very arguments, drawn from the Report of the Commission, on which the hon. and learned Attorney General relied, he (Sir J. Graham) was prepared not to have given way on a former evening, and to vote for the restoration of the clause to its original form; but the Attorney General deliberately refrained from taking that course, and the noble Lord at the head of the Government consented to adopt the decision of the House. That night the Attorney General, after full deliberation, had told them that the effect of the decision of the House with reference to property of an immense amount, in which the people of England were deeply interested, would be to transfer it from competent to incompetent judges. The Attorney General might not wish to intimidate the House, but such a statement, from so high an authority, was most alarming, and therefore he wished to know positively what course he intended to pursue. If the learned Attorney General thought there was any danger in transferring these powers to the local courts, if he thought the measure had been destroyed or rendered absolutely prejudicial and dangerous, then he ought to give effect to that decision, and no longer press the Bill upon the House, for they had arrived at a time when the Government ought to adopt a decided line on this subject.
§ MR. HENLEY
observed, that he shared in the surprise expressed by the right hon. Baronet with reference to the language of the hon. and learned Attorney General, though he could not at all agree with him that the tribunals to which they were about to give so much authority, at all merited the language which the hon. and learned Attorney General had used towards them. In the Commission he never was satisfied with the propriety of the limit to £1,500. The right hon. Baronet said the evidence on that subject satisfied him; but there 82 were seventeen witnesses examined before the Commission, and sixteen of them were proctors and other persons connected with the London Courts, while not one witness was examined from the country. No doubt, if they took the opinion of the London professional gentlemen, every mother's son of them would say that the country Courts were not equal to the duty. In the Commission the right hon. Baronet (Sir J. Graham) wanted to give the new court all the powers both of a Court of construction and a Court of Probate, and he wished to carry it into the Court of Chancery; but his hon. and learned Friend (Sir. F. Kelly), who equally wanted it to be a Court of construction, would not have the Court of Chancery at any price. That was a matter which they might settle between them; but while they were settling it the country never would get an amendment of the law. For his own part, he did not see that it was important that the Court of Probate should be also a Court of construction; for the question of will or no will, and those with respect to the rights of the legatees, arose between different parties. Before they were driven to vote for this clause they ought to know the opinion of the Government more distinctly than they did at present. He could not understand why if a person was competent to pass a will for property of any amount, property in shares should be excluded from his supervision. He denied that the parties who would have to deal with that and other kinds of property were incompetent, as described by the hon. and learned Attorney General.
§ LORD JOHN RUSSELL
remarked that, like his right hon. Friend (Sir J. Graham), he also was somewhat embarrassed by the speech of the hon. and learned Attorney General. His right hon. Friend said in a former speech that this Bill ought to be settled in the manner most advantageous to the public, and that if compensation was afterwards to be found due, that should be a matter for future consideration. In that he entirely agreed. He did not think that for the sake of the London proctors they ought to make the Bill so different to what the public interest required. But then the difficulty was with regard to the line which the Attorney General wished to draw with respect to the funds of railway companies. He could understand the argument that the district registrars were incompetent, and therefore ought not to have any amount of pro- 83 perty committed to their charge; but, if it were admitted that they were competent to deal with large sums of money, he could not comprehend why it was that they should not be held equally competent to dispose of questions which affected railway property in London. The Attorney General, indeed, seemed towards the latter portion of his speech to have leaned to the opinion that the District Registrars were incompetent, and that they ought not upon that account to have under their control money lodged in the Bank of England or invested in railway stock; but, if that were so, upon what good ground could the great mass of other property be committed to their hands? The hon. and learned Gentleman had further observed, that he wished to draw a line between property which could be sold only by public auction and that which might be transferred by mere writing; but if he were to draw that line, then, as the hon. Member for Wallingford (Mr. Malins) had remarked, a balance placed in a banker's hands, whether in London or elsewhere, would come under the operation of the principle for which the hon. and learned Gentleman contended. The hon. and learned Gentleman, however, did not propose to include property of that kind, whatever might be its amount, within the provisions of his Bill, but allowed it to be disposed of by those very persons upon whose competency; he cast a suspicion. He (Lord J. Russell), under those circumstances, felt that there existed many obstacles in the way of his agreeing to the clause as it stood. Whether the Attorney General could make out any special case with respect to requiring metropolitan probates for the £800,000,000 in the funds was another question. The hon. and learned Gentleman did not appear to have laid much stress upon the clause in that respect, and indeed had spoken of his own proposal in such terms as rendered it extremely doubtful whether he himself could, with any degree of consistency, vote in its favour.
§ VISCOUNT PALMERSTON
said, it had been asked what the opinion was which the Government entertained with respect to the competency or incompetency of the district registrars? Now, that was a point which the Committee had already decided, and although Her Majesty's Ministers would have preferred an arrangement different from that at which the decision of the Committee had compelled them to arrive, yet deeming the Bill to be one of a 84 very useful and valuable character, they had deemed it expedient to concur in that decision rather than that the Bill should be thrown overboard. The point that evening under discussion was, whether the Committee should agree to the clause which his hon. and learned Friend the Attorney General proposed, as it stood, or whether they should confine the metropolitan probate to stock in the Bank of England; in short, whether they should adopt the clause of his hon. and learned Friend or that which the hon. and learned Member for Suffolk had submitted to their notice. Now, he might be permitted to observe that it would test the ingenuity of any man living to perceive any well-defined distinction between both propositions. The fact, indeed, was, that they were not the only propositions that had been laid before the Committee, as the utmost variety of opinion upon the subject under discussion appeared to prevail; in fact, there were almost as many opinions as persons. All the schemes which had been pressed upon their attention were perhaps open to considerable objection; but, so far as he was concerned, he should be prepared to agree to a clause by which district probates should be made applicable to every species of property, except stock in the Bank of England, and East India Company stock, and that for the transfer of these stocks metropolitan probate should be requisite, not that the country probate should be invalid altogether. If the will applied to stock in the Bank of England or East India stock, it would be valid for other property; but that for the transfer of these stocks it should be necessary to have a metropolitan probate.
§ MR. MALINS
said, he wished to express his astonishment at the circumstance, that the Attorney General should in the name of the Government have stamped the district tribunals with incompetency. If such were the opinion which Her Majesty's Ministers really entertained, then it was their duty, as had been pointed out by the right hon. Member for Carlisle (Sir J. Graham) to withdraw the Bill altogether.
THE ATTORNEY GENERAL
said, he rose to state that he should consent to the withdrawal of the clause, and that he should be prepared at a future stage of the Bill to bring up another clause based upon the proposition of his hon. and learned Friend the Member for East Suffolk (Sir F. Kelly), and merely exempting from the operation of county probates stock in the public funds. He thought it better to 85 take that course than to put the Committee to the trouble of dividing.
§ Clause withdrawn.
THE ATTORNEY GENERAL
then moved the substitution for Clause 51 of, a clause to the effect that any parties who, under the operation of the Bill, might be dissatisfied with the decision of a County Court Judge, should have aright of appeal from that decision to the new Court of Probate, instead of the superior Courts of Common Law.
§ SIR FITZROY KELLY
said, he did not rise to object to the proposed clause, but to ask the Chairman whether it ought to be entertained before the clause which he had announced it to be his intention to submit to the consideration of the Committee in lieu of that which had just been negatived?
It has always been the practice in Committee of the whole House to give precedence to those clauses, which have been brought up by the promoters of the measure, in which it is intended they should be embodied.
THE ATTORNEY GENERAL
It is my intention to bring up a clause, carefully expressing the objects which the hon. and learned Member for Suffolk seeks to attain upon the Report.
§ MR. MOWBRAY
said, he hoped the hon. and learned Gentleman would give the House due notice as to the precise nature of the clause before it was laid before them.
§ MR. CAIRNS
said, that if he understood the hon. and learned Attorney General, his proposal was that a clause which went to the very root of the Bill should not be discussed until the Report. Now, such a course appeared to him to be fraught with so much inconvenience that if such were the intention of the hon. and learned Gentleman he should move that the Chairman report progress. There were other clauses in the Bill, such as the compensation clauses, which could not be properly discussed until the relative positions between the Metropolitan and District Courts had been established, and he thought it would be better to postpone the further consideration of the Bill until the Government had made up their minds upon that subject.
§ Motion made that the Chairman do now report progress, and ask leave to sit again.
THE ATTORNEY GENERAL
said, that he could have no object in postponing the discussion upon the clause of the hon. and learned Member for West Suffolk, and if the Committee considered that the discussion might then be advantageously taken he would offer no opposition to such a course.
§ Motion by leave withdrawn, and Clause agreed to.
§ A clause was then agreed to, providing that in case Sir John Dodson, the present Judge of the Prerogative Court of Canterbury and Dean of the Court of Arches, be not appointed the first Judge of the Court of Probate, there shall be paid to him during his natural life, as well by way of retiring pension as of salary as Dean of the Court of Arches, the net yearly sum of £2,000, to commence from the time appointed for the coining into operation of this Act, and to be paid out of the fund and in manner herein provided for the payment of compensations.
§ SIR FITZROY KELLY
then moved that the following Clause be inserted before Clause 42:—No probate or letters of administration granted by any district registrar shall be of any force or effect so far as relates to any stock transferable at the Bank of England or the East India House, unless and until the same shall have been sealed with the seal of the principal registrar of the Court of Probate in London; and such probate and letters of administration, when so sealed, shall be of the same force and effect as if originally granted by the said Court of Probate; and it shall be lawful for the principal registrar of the said Court of Probate, and he is hereby required, unless good cause be shown to the contrary, to seal all such probates and letters of administration, upon application made to him for that purpose, by or on behalf of the executor or administrator therein named.He could assure the Committee that the clause was not one for the benefit of the Bank of England but for the benefit of the fundholders. The public funds were administered by the Bank of England, under divers Acts of Parliament, which compelled the Bank to act under different rules from those which governed other institutions. The Bank of England was bound to act on the probate when it had been once granted, and until recalled, notwithstanding any notice it might have received that the will was a forgery, or that administration had been improperly obtained. All that the 87 Bank of England had to do was to see that the probate was genuine. It had nothing further to do with the will whether it was a forgery or not. The Bank, therefore, had no power to obtain any indemnity as railway and other companies had. The object of the clause, then, was to enable persons to prevent the Bank of England from acting under a genuine probate when the validity of the will itself was questioned, and thus to afford security to fundholders. There might be some question as to the process by which this counterseal could be obtained; but, for his own part, he thought it would be better to leave that matter to be regulated by the rules and orders which under this Bill were to be made by the Judges.
§ MR. MALINS
said, he believed that the clause was altogether void of substantiality. Its principle was that a country probate should not be good for India stock or for Government stock. If it were not to be substantial in its operation it would be a mere form and waste of labour; if it were to be substantial it would amount to a reconsideration of the will and a double probate. The total number of probates for England and Wales was, upon an average, 25,000 a year. All the wills affecting the public funds—that was, all those taken to the Bank of England, in the year, affecting the transfer of public funds—did not exceed 4,000. No one could say that that great establishment would be embarrassed by considering twelve probates a day, which would be the average number. The question really involved was whether the District Courts were competent tribunals or not, and if they were competent he contended that they must be trusted, and trusted to the fullest extent. It appeared to him perfectly ridiculous to say that if a country probate were sent up to the Bank of the hon. Member for Kendal (Mr. Glyn) for £30,000 or £50,000, he must transfer the amount as directed, but if the same probate were sent up for £500 three percent, stock it would go for nothing and the will must be proved over again. For these, amid many other reasons, he should oppose the clause.
§ MR. WIGRAM
said, he should support the clause, because he was persuaded that under the new system, in spite of their utmost precautions, two probates might be issued, and then there would arise a question as to which of the two was the valid one. Suppose a man left two instruments, one leaving his stock to the widow 88 and the other to his son. The widow rushed to Durham and obtained probate, and the son posted off to York and obtained probate. In such a case he believed that the first probate granted would be the valid instrument in the eye of the law; but still the person who obtained the second probate might get up first to the Bank of England and might procure the transfer of the stock. He believed that that transfer would be invalid, and it appeared to him that the clause proposing a metropolitan probate would obviously guard against such a contingency, because the Metropolitan Court would not affix its seal to more than one instrument. On behalf of the public, then, and not looking to the interest of the Bank of England, he thought that the protection proposed was reasonable, and ought to be granted. If, however, the clause were not agreed to, it seemed to him, in reference to the class of cases referred to, that it would be desirable to introduce into the Bill an indemnity clause. If he received any encouragement from the Government, he would propose a particular clause with that view.
§ MR. WEGUELIN
said, that the accounts of the Bank of England in connection with the public funds were greater than the accounts kept by any other body, and amounted to about 250,000, belonging to persons scattered all over the world. The only risk the Bank of England ran in respect to acting on probates was this, that the person whose will was brought before them with probate attached might be still alive. It was, therefore, he thought, necessary that the Bank should not only have proof of the will, but also of the death of the person whose will was supposed to have been proved, for, otherwise, he might claim to have his stock restored. Considering the number of accounts which the Bank of England had connected with the public funds, a distinction ought to be drawn between their case and the case of any other body or individual; and the public creditor had some claim that his security in all respects should not be altered without his own consent. There had been a certain amount of security in dealing with the public funds in this and other respects, and it was hardly fair that it should be altered.
§ MR. CAYLEY
remarked, that he thought that the hon. Gentleman had given a most potent reason in favour of a local probate. He hoped that the present Bill would pass.
§ MR. CAIRNS
said he was not satisfied 89 with the reasons of the hon. Member for Southampton (Mr. Weguelin). The Bank of England wanted protection from only one danger, that of the party supposed to be dead turning up on a future day; and this clause did not give it. The Bank, in point of fact, had the means of protecting themselves in their own hands. By this Bill they were constituting forty-one distinct courts over the country, every one of which was to have a separate seal. In order to enable the Bank of England to know all those seals they were in effect saying that every probate should be brought up to London, and that the Bank of England should have a voucher proving that the seals were the proper ones that should be affixed. He wanted to know what right the Bank of England had to this protection more than any other body. Why should not the London bankers generally demand the same protection? If any establishment had the proper staff for their own protection it was the Bank of England. He considered that the proposed clause rendered necessary a proceeding which would be either an idle ceremony, for which, however, a fee must be paid, or, if it were meant that the proceeding should be substantial, it would amount to a second probate, necessitating the reinvestigation of the whole case at considerable expense.
THE ATTORNEY GENERAL
said, the effect of the clause would be that if the estate of a, testator comprehended funded property, and the will had been proved in a District Court, it must be brought up to London to be again inspected, in order that probate might be confirmed in the Metropolitan Court. Such a course would be attended with considerable delay and expense, but it was for the Committee to determine whether or not they would give their assent to the clause.
§ Clause negatived.
§ The House resumed.
§ Committee report progress: to sit again on Thursday.