HC Deb 25 February 1862 vol 165 cc722-6

said, he rose to move for leave to bring in a Bill to regulate the procedure of the Court of Chancery. The object of his Bill was simply to make it imperative on the Courts of Chancery to determine every question of law and fact necessary to enable them to administer the jurisdiction they possessed. He did not desire either to enlarge or to diminish, to alter or affect in any way the jurisdiction of these courts. In the exercise of i that jurisdiction, however, there often arose questions of law and fact, which, under the present mode of procedure, the courts of equity were in the habit of referring to the courts of law for their opinion or decision as preliminary to the determination of the equitable questions arising in the case, and he proposed by this Bill that this course of procedure should be discontinued. The object of the Bill, though simple, was therefore of considerable importance, and would produce very large results in the administration of justice in those courts. He was quite conscious that the onus lay upon him to give solid reasons for the change. The Legislature had already thought it desirable to remove all doubt as to the power of the Court of Chancery to determine all questions of law and of fact requiring to be determined for the exercise of its jurisdiction; and the Act of the 15 & 16 Vict., c. 86, gave them full power for that purpose, and with the same view took away from the Court the power of obtaining the opinion of a court of law by stating a case. But notwithstanding the evident intention of the Legislature, the Court of Chancery was still in the habit of sending questions of law and of fact to be determined by a court of common law as before. It was still within the power of the Court of Chancery to refuse or postpone its own decisions until some question of law or fact had been decided at law either by means of an action or of some issue directed by the court to be tried at law. The cases of injunctions applied for in equity against the infringement of patents or of copyright would very well illustrate the subject, though there were many other classes of cases in which the inconvenience of the present system was equally great. If the owners of a patent alleged that it was infringed, they applied to the Court of Equity for an injunction, and their right to the injunction in equity depended in equity on the legal validity of the patent and on the fact of infringement. The court was in the habit of saying to such parties, "You must bring your action at law or try your issue. Prove that the patent is valid and has been infringed, and then you may come here, and we will grant you an injunction." That state of things caused much uncertainty, delay, and expense. The courts had the power of determining the law and the fact for themselves, but it was a question of discretion with them whether they should exercise the powers they possessed or not, and frequently they were led to say that the courts of law were a better tribunal, and to decline to discharge the duties to which the Legislature had invited them. Every suitor to the Court of Equity was told that the court had the power to determine all the questions of law and fact, and the result often was that he exhausted all his evidence and went through the whole of his case, as if everything were to be decided in equity, only to find that it had all to be done over again, with great additional delay and expense, in a court of law. The grievance was of so large and frequent a character that it was worthy of redress. In about one hundred cases that had recently come under his notice, one-sixth contained some specific question of law or fact that required to be determined to enable the Court of Chancery to exercise its jurisdiction, and more than two-thirds of this proportion had been sent to a court of law. One objection might possibly be urged—namely, that judges of courts of equity were not so equal to the discharge of these duties as judges of courts of law, and that in equity there was no adequate machinery for the purpose. But it was well known that equity lawyers were selected to argue pure questions of law in the Exchequer Chamber and in the House of Lords, the courts of the last resort. In fact, it was necessary to be master of the whole law before any person could with propriety undertake to practise or to administer justice in courts of equity. He had known, for instance, a case of copyright, which was a pure question of law, sent out of the Court of Chancery to be tried in a court of law; and when argued at law, the authorities cited had been for the most part cases which had been decided in a court of equity. Now, he proposed to make it imperative on the Court of Chancery to determine all such questions itself. Questions of equity were frequently arising in courts of law, and, there was no such necessity for judges in courts of law to be masters of equity as there was for judges of equity to be masters of law; but a court of law never thought of sending equitable cases to courts of equity, but dealt with them itself; and, in like manner, there could be no doubt whatever of the capacity of courts of equity to deal with questions of law. The only question, therefore, was, whether courts of equity had sufficient facilities to deal with all questions of fact? It was quite competent for them to summon witnesses and to sift evidence viva voce, and to proceed by jury trial when necessary; and though for the first half-dozen cases there might, perhaps, be some awkwardness in the way in which practitioners in equity might deal with a jury, yet the difficulty would soon be got over. At all events, if there was any part of the duty which the equity judges were unable to discharge, let them be deprived of jurisdiction so far as regarded that part, but do not let suitors be bandied backwards and forwards flora one court to another to try a single question of right. He desired, in conclusion, to say that he did not for one moment complain of the course taken by the judges in the courts of equity, or of the way in which they exercised the discretion intrusted to them, as to the determination of questions of law and fact. No body of men, without exception, could be found more able or more willing to discharge every duty which was placed upon them. But, taking human nature as it was, the result would be such as he complained of—when there was power to send particular cases elsewhere, there would be a natural and inevitable tendency to do so. If each court was, as it was bound to be, master of the principles of law and equity, and each court was bound to discharge all its own duties, the advantages of a division of labour would make it convenient that the courts should be separate as now; a great and substantial remedy would be provided for evils existing under the present system; and there would be no necessity for any fusion of or any breaking down the boundaries between the principles administered in courts of law and in courts of equity. The hon. and learned Gentleman concluded by moving for leave to bring in a Bill to regulate the procedure of the Court of Chancery.


said, he heartily concurred in the general views and principles which his hon. and learned Friend had expressed, and in his estimate of the practical importance of the subject. His noble and learned Friend the Lord Chancellor had authorized him to state that his attention had been directed to that very subject, and that he had it in contemplation to embody that, as well as other points touching the practice and procedure in the Court of Chancery, in a Bill which it was his intention to lay on the table of the other House. At the same time, his noble and learned Friend did not wish to throw any impediment in the way of his hon. and learned Friend. who was so well entitled to contribute his valuable assistance upon questions with which he was so well acquainted. He thought that they would all concur in the main principles which his hon. and learned Friend had laid down — that it was of the utmost importance that every court should be, as far as possible, complete in itself, and that multiplicity of litigation should be got rid of, not merely discouraged. In the nature of things, courts of equity must be as competent to deal with questions of law as any other courts, because all equity was founded upon law. With regard to the procedure on questions of fact, great improvements had been made. He assumed, however, that his hon. and learned Friend did not propose to deal with questions of fact in such a manner as to take away the power which courts of equity possessed of sending issues of fact to be tried at the assizes before juries, as was done by the superior courts of law themselves, when, in consequence of witnesses residing on the spot, there would be greater convenience and cheapness in so doing. It might not be improper to add that judges of great authority on many questions had actually laid it down that it was the only proper course for a court of equity to require the previous establishment of the legal right by action of law. Now, they all knew that this course had become, so well-established by precedent, that it might be doubted whether judges would not feel that in departing from that usage they were exercising a discretion, which might be competent to them in the abstract, in a manner which previous precedents had shown to be improper, He also agreed with his hon. and learned Friend, that if the equity judges possessed only a discretionary power to try questions of law, they would naturally be inclined to refer them to the common law judges, from a belief that they were more in the habit of dealing with them. The legislation which his hon. and learned Friend proposed was therefore not only useful, but necessary for the purpose of cutting off a vicious course of precedents, and of delivering the courts of equity and the judges who presided in them from the fetters which that usage had imposed upon the exercise of their discretion.


said, he wished to express his concurrence in the principle of the Bill, but it was his opinion that in the event of this Bill becoming law the common law judges should be engaged to assist in the trial of the issues of cases in equity courts, and that barristers practising at common law should be admitted to the equity courts without a breach of etiquette.

Leave given. Bill to regulate the Procedure of the Court of Chancery, ordered to be brought in by Mr. ROLT and Sir HUGH CAIRNS.