HC Deb 18 June 1858 vol 151 cc57-66

Order for Committee read.

House in Committee.

Clause 3.

MR. WHITESIDE

said, he proposed to amend this clause by inserting the word "three" instead of "two," the intention being to retain the services of Mr. Hargreave as one of the Judges of the Court.

MR. MALINS

said, when the matter was under discussion on Tuesday last there was a strong opinion in favour of two Judges, and he did not understand why the right hon. and learned Gentleman had since changed his mind in favour of three.

COLONEL FRENCH

said, there was a very good reason in its being the unanimous wish of the Irish landed proprietors. It was hard the hon. Member for Wallingford would not let Irishmen manage their own affairs. They knew what they wanted, and they were determined to have it in spite of all the professional Members of the House.

MR. MALINS

said, he thought the gallant Officer was going too far. He had still heard no reason, and he was not to be detered from expressing his opinion by such language as that adopted by the gallant Member for Roscommon.

MR. WHITESIDE

said, that he had received representations from a number of gentlemen informing him that a greater quantity of landed property would be likely to pass through this Court than he had anticipated; and also a recommendation from the Society of Solicitors that the services of Mr. Hargreave should not be dispensed with. On these grounds he had purposed to alter the number of Judges from two to three.

MR. DOBBS

said, he for one thought two Judges were enough, and he thought it very extraordinary when everywhere else there was a disposition to reduce the number of Judges, that they should be anxious to multiply them in Ireland.

MR. MALINS

said, that although he did not wish to oppose the decision of the Government, he entertained a very decided opinion that there was no prospect of more than two Judges being required to transact the business of this Court. He did not think that the landed gentry of Ireland were the best judges of how many Judges ought to be appointed.

MR. S. B. MILLER

thanked the Attorney General for Ireland for the concession he had made in retaining Mr. Hargreave—a concession which he thought was wise and judicious.

MR. ADAMS

said, he could agree in the doctrine of the hon. and gallant Mem-for Roscommon (Colonel French) that none but Irish Members ought to interfere on Irish subjects. He was in favour for uniting Irishmen, Englishmen, and Scotchmen as much as possible. With regard to the question before them, he considered that two Judges would be ample for the amount of business. He had heard nothing to induce him to suppose that three Judges would be required.

MR. P. O'BRIEN

congratulated the right hon. Gentleman (Mr. Whiteside) on having made a concession to the wishes of the suitors and others in retaining the services of Mr. Hargreave.

THE SOLICITOR GENERAL

said, he agreed that it was desirable to have English Members taking part in this discussion, and all the rather that it was possible a similar measure would ere long be applied to England. With respect to the question before the Committee, he would, for himself, prefer two Judges, but the whole question was an experiment. Whether they began with two Judges and afterwards increased them to three, or whether they began with three Judges and afterwards reduced them to two, was more a dispute about words than anything else.

Clause as amended agreed to.

Clause 4, (regulating the appointment of future Judges.)

MR. MALINS

said, the clause, as it stood, would exclude any English barrister from the appointment, and among them, therefore, Mr. Hargreave, to whom everybody seemed to say the success of this experiment was mainly owing. It would also exclude chamber counsel and conveyancers, who could not be said to have practised in "the superior courts." Now, there were in Lincoln's Inn eminent practitioners who had hardly ever in their lives addressed a Judge on the bench, and it would be very unwise to prevent such gentlemen from being appointed. He should therefore move the omission of the words requiring each Judge to be "a practising barrister of at least fifteen years' standing, who shall have actually practised fifteen years' in Her Majesty's superior Courts in Dublin."

MR. BUTT

said, that he should support the proposal of the hon. and learned Member for Wallingford (Mr. Malins) if pressed to a division.

THE SOLICITOR GENERAL

said, he must oppose the Amendment. He conceived that a practising barrister was not a person who had a particular number of briefs, but who, if a brief were offered him, was prepared to take it.

MR. COGAN

supported the Amendment. He thought any barrister should be eligible under the Bill, although he was not a practising barrister.

MR. P. O'BRIEN

suggested, that the words should be "fifteen years called to the Irish bar."

MR. MALINS

said, that if the clause were passed as it stood men who had practised at chambers for many years, and had attained great eminence there, but who had only been a few years at the bar, would be ineligible for the appointments.

MR. WHITESIDE

said, that the clause was advisedly framed. In Dublin there were some conveyancers who were among the most ignorant men on the face of the earth. Moreover, the law of Ireland was still, in some respects, peculiar; and for such an appointment as that in question an Irish barrister would be better qualified than an English barrister.

SIR ERSKINE PERRY

said, he would support the proposal of the hon. and learned Member for Wallingford. Under an impartial Act the position of the Irish and English barristers ought to be the same.

MR. MALINS

said, he would propose to withdraw his original suggestion, and to move the omission of the words, "in Her Majesty's superior courts in Dublin."

SIR DENHAM NORREYS

objected to the withdrawal of the original Amendment.

Amendment by leave withdrawn.

SIR DENHAM NORREYS

said, that, although the hon. and learned Gentleman had withdrawn the Amendment he had proposed, he thought the clause should be put into such a form as would enable the Government to obtain the best lawyers, whether English or Irish, who could be appointed to these judgeships. Mr. Hargreave had been selected for his position, because he was a man fully acquainted with a particular branch of the law. He (Sir D. Norreys) believed there were no men more eloquent than Irish barristers, but it was requisite that gentlemen who were appointed to the important position of Judges under this Bill should possess a thoroughly practical knowledge of their profession. He believed that his countrymen engaged in the legal profession were as eloquent as any men could be, but he doubted whether they were such deep lawyers as the members of the English bar, because in Ireland barristers pursued all the branches of their profession, while in this country there was a division of labour. He objected to the Bill in its present form on the ground that it might preclude them from obtaining for the Landed Estates Court in Ireland Judges who possessed the highest legal acquirements, and he would move that after the words requiring that the Judges of that court should have "actually practised fifteen years in Her Majesty's superior Courts in Dublin," the words "or at Westminster" be inserted.

Amendment proposed, in page 4, line 12, after "Dublin," to insert the words "or at Westminster."

Question put, "That those words be there inserted."

The Committee divided:—Ayes 27; Noes 114: Majority 87.

Clause agreed to, as were also Clauses up to Clause 11.

Clause 12 (Appointment of Officers).

MR. G. A. HAMILTON

said, that the House had for many years granted large sums of money to sustain the Incumbered Estates Court in Ireland so long as it was of a temporary character; but the object of the present Bill being to establish permanently in its stead a most important court, which would not fail to be attended with great advantages to suitors, his right hon. and learned Friend had judged—and judged rightly—that under those circumstances the court should be self-supporting, and the manner in which he proposed to do this, was by imposing a tax on the land which was sold and transferred through the instrumentality of the new court. But in order to rigidly maintain the principle which it was his (Mr. Hamilton's) duty as representative of the Treasury to look after, it was necessary, in consequence of the change made in the number of Judges, to make an alteration in this clause with regard to the salaries of those Judges. Mr. Henry Martley, one of the present Judges, was in the receipt of £3,000 a year; and of course it would be unfair to make any diminution in that. The other two Judges possessed a salary of £2,000 a year each. His right hon. and learned Friend contemplated when it was intended to have but two Judges that the scale of remuneration should be higher; but inasmuch as they were now to be three Judges, he proposed that Mr. Martley should receive, so long as he continued to hold the office, the salary he received at present; that each of the other Judges should receive £2,500 a year; and that when a vacancy occurred in the office held by Mr. Martley, the uniform salary of all the Judges should be £2,500 a year each. In conclusion he would move to amend the clause accordingly.

SIR ERSKINE PERRY

approved of the Amendment as indicating the exercise of a wise discretion on the part of the Government.

MR. SERJEANT DEASY

remarked, that the arrangement was calculated to lower the position of the other Judges in relation to that occupied by Mr. Martley.

MR. G. A. HAMILTON

said, he should be sorry if it were supposed that, in fixing a smaller salary for the other two Judges than for Mr. Martley, any disrespect was meant towards those gentlemen. The larger amount proposed to be granted to Mr. Martley was in consideration of the fact that he was in the enjoyment of that salary at the present moment.

MR. W. WILLIAMS

asked, if the officers of the Incumbered Estates Court would be employed in the new court?

MR. WHITESIDE

replied, that they would, every one of them, and they were all perfectly competent.

Amendment agreed to, and the clause was ordered to stand part of the Bill.

Clause 19 (Retiring Allowances to Judges).

MR. WILSON

asked, if the Judges would be entitled to the allowance after a certain number of years' service?

MR. WHITESIDE

said, he could inform the hon. Gentleman that, whatever might be the case in England, it was not the practice for Irish Judges to retire.

Clause agreed to.

Clause 20 struck out.

Clause 21.

MR. MOFFATT

said, he wished to draw the attention of the Committee to the inadequacy of the provision made for Mr. Locke, one of the most efficient officers of the court, and a gentleman to whose ability in the discharge of his duties every one who had had any business to transact in the Incumbered Estates Court could testify. He trusted that his case would receive the attention it deserved at the hands of the Attorney General for Ireland.

MR. GROGAN

said, he concurred in the hon. Member's remarks, as he could bear testimony to the value of Mr. Locke's services.

MR. WHITESIDE

said, that he would feel great pleasure in attending to the suggestion he had just heard; he was aware that Mr. Locke had discharged his duties in a most efficient manner.

MR. SERJEANT DEASY

said, he wished to advocate the claims of all the officers of the Incumbered Estates Court, and trusted they would also be taken into consideration.

Clause agreed to, as were also Clauses 22, 23, 24, and 25, the three last with verbal Amendments.

Clause 33,

MR. DOBBS

said, he wished to move the substitution of the words "seventy-two" for the word "ninety." The object of that Amendment was to enable the law stationers to make their charges for seventy-two words in each folio.

Amendment proposed, in page 12, line 12, to leave out "ninety," and insert "seventy-two."

Question put, "That 'ninety' stand part of the Clause."

The Committee divided:—Ayes 35; Noes 140: Majority 105.

Clause agreed to, as were also Clauses 31, 32, and 33.

Clause 34,

SIR ERSKINE PERRY moved, as an Amendment, to insert in page 14, line 33, the words "and generally, the examination as to all disputed facts shall be according to the rules of common law."

MR. WHITESIDE

objected to the restriction which these words would impose.

THE SOLICITOR GENERAL

said, he also should resist the proposal, on the ground that in many cases the mode of proceeding by affidavits was preferable; but power was given to employ viva voce examinations whenever it was thought proper.

Amendment negatived. Clause agreed to; as were also Clauses 35, 36, and 37. Clause 38,

MR. BUTT

said, he should move, as an Amendment, the omission of the clause, The effect of the clause as it stood would be to send to the Judges of this Court questions which ought not to come before Judges who had not had experience at nisi prius. Two of the existing Judges of the Incumbered Estates Court had not had that experience. To give gentlemen so situated the jurisdiction which this clause would confer was the more objectionable, inasmuch as under the present Bill the Judges were to sit separately, and the appeal was to themselves.

MR. WHITESIDE

said, he could not see any objection to giving the Judges of the new Court authority, if they should think fit to exercise it, to empannel a jury and try questions of fact. The Judge of the Probate Court had that power at present. The clause was only permissive.

MR. S. B. MILLER

said, that the person, of all others, who could form the best judgment, and would be the most competent to try a question of lease would be the Judge who presided in the Court which tried the question of title.

MR. SERJEANT DEASY

said, that the Clause was merely a permissive one, and could be retained without disadvantage.

SIR ERSKINE PERRY

hoped that the Amendment would be withdrawn.

MR. BUTT

said, he would not withdraw the Amendment, but he did not wish to press it to a division.

MR. VANCE

inquired what would be done in the case of applications for new trials; would the Judge who tried the case decide the question, or would the Judges sit in banco upon it?

MR. WHITESIDE

said, that in the Court of Equity the Lord Chancellor decided whether a new hearing should take place, and therefore there would be no inconsistency in the Judge who tried the case in this instance granting a new trial; but by a subsequent clause the Judge could call in the asisstance of another if necessary.

MR. MALINS

said, that if this were a compulsory clause, he should certainly vote against it.

Clause agreed to, as was Clause 39.

Clause 40 (granting of New Trials).

MR. BUTT moved an Amendment, to the effect that the appeal should be to the full Court, consisting of any two of the Judges or the three Judges sitting together for the purpose of such appeal, and, if not so appealed from, every order of such Judge should be deemed and taken to be, and shall be called, the order of the Court. Such an appeal would be especially necessary on new trial motions.

MR. WHITESIDE

said, he should oppose the Amendment. He had followed the analogy of the Court of Bankruptcy in the clause, and he might observe that the Commissioners of the Incumbered Estates Court considered it as so much lost time to be called on to sit certain days in the week to review the decisions given by them singly.

SIR ERSKINE PERRY

thought that one appeal was quite sufficient, and he suggested whether it would not be better to give a direct appeal to the House of Lords at once.

MR. SERJEANT DEASY

said, he thought that the course proposed by the Attorney General for Ireland was the best, and such was the universal opinion of the profession. The appeal now would be direct to the regularly constituted court of appeal—namely, the Court of Chancery.

Amendment negatived.

Clause agreed to.

Clause 41 (Proceedings in Appeals).

MR. MALINS

said, he thought the time, thirty days, allowed for appealing was too short. He should move to extend the period to three months.

MR. SEBJEANT DEASY

supported the proposal of his hon. and learned Friend.

THE SOLICITOR GENERAL

remarked, that at all events a period of sixty days was desirable.

MR. B. OSBORNE

said, that this clause applied to the case of parties coming to the Court for a title, and therefore a period of at least three months was essential.

MR. BUTT

also supported the Amendment.

MR. WHITESIDE

said, he would consent to the insertion of three months instead of thirty days.

Clause, as amended, agreed to; as were also Clauses 42 to 46 inclusive.

Clause 47 (Vendor or Vendee may apply for investigation of title).

MR. SERJEANT DEASY

said, he must object to this clause, as giving to the Judges of this Court power, in contentious cases of disputed claims on the part of contracts, and of disputes with regard to sales. This would be to make the Court a new Court of Chancery; the Judge in the Court would have his time withdrawn from the proper business of his office; and when he had decided it, the case would be certain to be carried by appeal to the Court of Chancery. Why not let it go there at first? He moved that the clause be omitted.

MR. WHITESIDE

said, the clause was divisible into two parts. One was where both parties, vendor and vendee, agreed to present a petition to the Court about which there could be no dispute. The other part was where the contract upon the face of it declared that it should be carried out by the instrumentality of the Court. There could be no good reason why parties should not be allowed to make a bargain of that nature. The case had been put of the contract having been, obtained by fraud, but in such a case there was not a word in the clause to prevent the Court of Chancery from setting aside the contract.

SIR DENHAM NORREYS

feared lest the interests of other parties than those entering into the contract would be affected by the title to be given by the Court.

MR. BUTT

thought that the words of the clause as they at present stood would go much further than the right hon. Gentleman represented.

MR. COX

suggested, that in accordance with a salutary suggestion of the right hon. Gentleman the Chancellor of the Exchequer, no discussion should take place after twelve o'clock at night, and this was more particularly desirable as there were not fewer than nineteen other orders of the day to be disposed of. He would, therefore, move that the Chairman report progress.

THE CHANCELLOR OF THE EXCHEQUER

explained that this was not exactly his suggestion. What he proposed was, that they should not go into fresh debateable matter, but he had no idea of stopping discussion in the middle of a clause.

Mr. COX

having withdrawn his Motion, Clause agreed to; as were also Clauses 48 and 49.

House resumed. Committee report progress; to sit again on Monday next.

House adjourned at a Quarter before One o'clock till Monday next.