COURT OF CHANCERY (IRELAND) (No. 2) BILL— [BILL 25.] (Hansard, 16 February 1865)

§ MR. WHITESIDE

said, that in moving for leave to introduce a Bill relating to the constitution, practice, and procedure of the Court of Chancery in Ireland, he begged leave to refer to the fact that a Bill on the same subject had been brought in a few nights before by the Attorney General. Not satisfied with the management of the business of England, that hon. and learned Gentleman had kindly undertaken to transact the business of Ireland likewise. The Bill brought in the other evening was nearly a transcript of the measure introduced last Session by the then Attorney Genaral for Ireland, but which was not acceptable to the House— and, in fact, utterly failed. Notwithstanding this, the hon. and learned Attorney General had brought in the Bill without altering it materially, and seemed determined to carry it through. Having himself opposed that Bill, he had felt that it was incumbent upon him not to content himself with the easy task of objecting to the proposals of others, but to examine the whole subject, and to prepare a Bill which he believed would be acceptable, and he had adopted whatever he might find to be useful either in the re- 308 commendations of the Commissioners or in the measure of which the Attorney General had somewhat inconsiderately taken charge. His first objection to the scheme before the House was, that in a Bill of 194 clauses he had jumbled together two things which ought to have been kept distinct—namely, the provisions relating to patronage and financial considerations, which might give rise to much difference of opinion, and the provisions relating to practice and procedure, about which there ought to be no dispute, as far at least as the desirability of having a tribunal at once cheap, speedy, economical, and satisfactory in its working was concerned. For this he did not blame the English Attorney General, who, he believed, had not bestowed a thought on the subject; but those who had framed the Bill had designedly abandoned the precedent of the English Chancery Reform, where the clauses dealing with the Master's offices and reconstituting the court were thrown into one Bill, while the clauses affecting practice and procedure were comprised in a separate measure. That was the clear and natural division of the subject, and it ought to have been followed in the present case. He proposed to follow it himself; and accordingly the first part of the Bill which he asked leave to bring in sought to amend the constitution of the Irish Court of Chancery and to reduce the number of Judges in the Irish Landed Estates Court; and the other part dealt with practice and procedure. The object of the first part of the Bill introduced by the Government was to pay off for the rest of their lives four existing officers, who were practically Vice Chancellors, and then appoint in their stead one new Vice Chancellor, to be speedily followed by a second, with a new set of Chief Clerks and other officials. That, he thought, was a highly inconvenient course, and contrary to anything like economy or the real objects of the Commission. The Commission was appointed with a view to an improvement of the administration of the law, and they reported that there should be one Vice Chancellor to transact the whole business of Ireland, which was now transacted by four Masters in Chancery. But the Bill of the Government was founded on a fallacy, because it was represented that the same abuses existed in the Masters' offices in Ireland as had prevailed in the Masters' offices in England, whereas that was not the fact; and in 1850 Sir 309 John Romilly carried through Parliament an Act giving original jurisdictiction in many cases to the Irish Masters in Chancery. Therefore, the Bill of the Government was not intended to deal with the old Masters and with the abuses of their offices, but to strip these four gentlemen of all judicial functions, pension them off, and then appoint a new Vice Chancellor. Since, therefore, they were determined to have the title of Vice Chancellor—though no suitor in Ireland cared a straw about the title of the Judge, and only wanted to get out of his court as quickly as possible—he said, let it be so. He had, therefore, adopted a number of clauses from the English Bill, for the purpose of abolishing all those Ministerial duties which now belonged to the Masters in Chancery, and appointing a Vice Chancellor. Then, with the four Masters and the three Judges of the Lauded Estates Court, he said it was not just to the public to add to the number; and, therefore, he proposed that the office of Vice Chancellor should be offered in succession to the Judges of the Landed Estates Court, and if any one of them accepted the post, then that that court should consist of two Judges, and not three. The Bill constructing the Landed Estates Court was introduced by Lord Derby's Government, who felt that it would be impossible to find work in it for three Judges, and proposed that it should be composed of two. However, it was then insisted upon, he thought, by Lord John Russell, that there should be three, and as the Whigs were determined on the point, the larger number had to be inserted in Committee. There had naturally been a great falling off in the business of that tribunal. The sales which took place under it in the four years from 1851 to 1854 involved £11,500,000 worth of property; whereas, in the last four years the value of the sales was £5,610,000. The sittings of the Judges were now greatly reduced—last week the Judges of the Court sat only two days, and on those days they rose at one o'clock—and it could hardly be contended that it was necessary to retain three Judges in that Court. The actual sales, as he had shown, had diminished by one-half, and the litigated business had diminished by three-fourths, If, under those circumstances, the Government were of opinion that the time had arrived to economize, his Bill would be found to be of use to them in carrying out that object. He agreed with the Master of the Rolls that, 310 unless they watched the system of Chief Clerks closely, they would have the vices of the old system revived. He had omitted in it all reference to the office of Chief Clerk, and had provided that the Examiner of the Landed Estates Court should be the officer of the Judge. He had created no new place, and he could assure the House that the gentleman to whom he alluded would be better qualified to discharge the duties which would devolve upon him than any Chief Clerk was likely to be. If they took the Judge and his staff they would save the Treasury £5,000 a year. Having said thus much with regard to the first Bill which he proposed to introduce, he should next advert briefly to the second part of this measure, which was for the amendment of the practice and course of procedure in the High Court of Chancery. There were some things in which he agreed with, and some in which he differed from the hon. and learned Attorney General. The first point in which he differed was the verification of a bill or petition by oath, in favour of which provision the evidence was very strong, and with respect to which, in a pamphlet entitled Law Reform, written by the present Master of the Rolls—and which he should recommend to the consideration of his hon. and learned Friend the Attorney General—that distinguished Judge said, "I never could understand on what ground you make the defendant answer on oath, while you do not pledge the plaintiff to the truth of his bill." The importance of such a course of proceeding in a poor country was that it put a stop to what were called "fishing bills." It obtained, he might add, in New York, where the books of law were as good as those which were written in this country, and he therefore saw no good reason why the plaintiff should not be called upon to pledge his oath to the truth of his story. But that was not all. It was the key-stone of their system, that all statements not controverted were taken as proved. He would, in the next place, ask on what principle it was sought to reintroduce interrogatories. In England in 1863 interrogatories were filed in 1,556 cases, while in Ireland during the same time they were filed only in two. The Master of the Rolls was directly opposed to them, and he could not understand why they should be restored in defiance of the opinions of the heads of the courts in Ireland. He trusted his hon. and learned Friend would not press that upon them. He would also ask the Attorney General 311 not to press demurrers upon Ireland, which the Master of the Rolls pronounced to have three objectionable properties:—first, they delayed the suit; secondly, they wearied out the plaintiff by unnecessary expense; and thirdly, they took the money from the pocket of the plaintiff, and put it into the pocket of the solicitor of the defendant. While they had been employed in England in sixty-nine cases they were had recourse to in Ireland, during the same period, not in a single instance, and were not, therefore, required in that country. The next point he had to mention was the examination of witnesses on paper before the Examiner. There were two Examiners in Ireland appointed by the Master of the Rolls, of whom one died some time ago, and he never would appoint an Examiner in his place. He was of opinion that it was productive of the greatest abuse to send a man to be examined before a person who possessed little or no authority, and who wrote down all the rubbish which might fall from the lips of a witness, instead of allowing him to say what he had to say vivâ voce in court, The Bill, consisting of two parts, he should now tender to the Attorney General, who he doubted not would acquaint himself with its contents and give him the benefit of his opinion. Having resisted the measure which was proposed last Session, he had thought it his duty to look into the matter during the vacation, and to prepare something deserving consideration at the hands of the House.