Lords Sitting of 30 November 1830

MINUTES."
Bills. The Earl of WINCHILSEA postponed sine die the second reading of his Bill for Finding Employment for Labourers. The Administration of Justice Amendment Bill was, on the Motion of Lord TENTERDEN, read a second time.
Petitions presented. By the Duke of RICHMOND, from Matthew Phillips, pointing out a method of Employment for the Poor. By the Earl of GROSVENOR, from St. George's, Middlesex, for a Repeal of the Metropolitan Police Act, to which his Lordship expressed himself favourable. For the abolition of Slavery — by Lords BEXLEY, WHARNCLIFFE and KING, the Earls of CARLISLE and RODEN, the Archbishop of CANTERBURY, and the Bishop of LONDON, from a great number of places.

SLAVERY—AMBULATORYCOMMITTEE.
Lord Napier,in presenting a petition from Gallowshiels in Scotland, praying for the gradual abolition of Slavery, said, that in the course of his services it had fallen to his lot to visit the principal places in which slavery prevailed. He could therefore speak upon the subject with the advantages of actual experience, and he could assure their Lordships, that slavery was an affair of considerably more importance than people generally thought it to be. His experience, and the consideration he had given to the subject, had led him to this opinion, namely—that their Lordships would never understand the matter until it was thoroughly examined by a committee of their own number. He did not mean a committee which should be roasting up stairs during the summer months, and which should listen to the evidence of self-styled philanthropists and philosophers, who would come before them with a lie in their right hands, for the purpose of deceiving their Lordships,—he did not mean such a committee as that, but a committee which should visit the colonies, inspect the slave-markets, and contemplate slavery in its naked deformity. This was the only way, he was convinced, in which their Lordships could arrive at a correct understanding of the subject; and, for his own part, he cheerfully offered his services to go as one of such a committee.

AMENDMENTS IN LAW PROCEEDINGS.
Lord Wynfordsaid, that he rose, pursuant to the notice he had before given, to
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move for leave to bring in a bill to lessen expense, and to prevent delay, in the proceedings of the Courts of Law in Westminster-hall. Notwithstanding the acknowledged excellence of the general body of our laws, there could be no doubt, he apprehended, that some defects existed in them. Indeed, this fact was sufficiently proved by the commissions which had been appointed by the late King, to inquire into the practice and proceedings of our superior Courts of Law, and into the state of the law of real property, with a view of suggesting such improvements in both as should appear necessary to the commissioners. That the commissioners appointed to inquire into the proceedings and practice of the superior Courts of Law had done their duty, there certainly could be no doubt; and he need hardly remind their Lordships that four out of these five commissioners had been advanced to the bench. He was quite sensible that, when he differed from such men as these, it became him to proceed with the utmost caution. He could assure their Lordships he should so proceed, and that if he proposed to go a little farther than the commissioners had gone, his steps should be taken cautiously, not only on account of the character of those from whom he differed, but because he was aware that no innovation should be attempted without the greatest deliberation and care. He had no inclination to press their Lordships to come to an early decision upon the bill which he proposed to introduce. He desired to bring it in immediately, merely in order that it might be printed and circulated among the legal profession, whose opinions and suggestions with regard to the provisions of it he was anxious to obtain. He should propose that the bill should be read a second time before their Lordships adjourned for the recess, but it was not his intention to have it committed until after Christmas. By this course the object he had in view would be attained, and their Lordships would have ample time for considering the provisions of the measure. With these observations, he would proceed to detail, shortly, to their Lordships the nature of the bill which, with their permission he intended to bring in. He had already stated, that the object of the bill would be to lessen the expense of, and to prevent delay in, the proceedings of Courts of Law in Westminster-hall. The two great

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causes of expense in the Courts of Law were the defective state of the pleadings, and the mode of taking evidence. And first with regard to the pleadings. It had been said by the ancestor of a noble Lord then present, that the science of special pleading was founded upon principles of good sense and sound logic. This was perfectly true when said of the ancient science of special pleading, because it was calculated to bring the cause to a plain and intelligible point. From the abuses, however, which had been introduced into the science of special pleading, it could no longer be said with truth that it was characterized either by principles of good sense or of sound logic. Indeed, the many forms which had been invented and foisted into the science, constituted perhaps one of the most striking disgraces of the age in which we lived, and were not calculated to give the least information either to the judge who was to try, or to the parties who were concerned in the cause. The old system of special pleading informed the judge of the nature of the cause he was about to try; but under the new system, a judge frequently went into court having no more knowledge of the cause than the crier of the court had. The multiplication of courts could serve no other purpose than that of creating confusion, and hence in a great measure the delay and the expense which were so frequently and so justly complained of. If, however, he had rightly understood his noble and learned friend (Lord Tenterden) the other night, his noble and learned friend had intimated that it was the intention of the judges to try whether these abuses could not be remedied by some regulations to be agreed upon among themselves. He had heard this with much pleasure, for he was convinced that the subject could not be intrusted to better hands, and he should not therefore attempt any alteration in this part of the law until he had seen what these very learned and very able men should be enabled to effect by the course in contemplation. Leaving this part of the subject, therefore, he would pass on to the next cause of expense and delay in our Courts of Law,—which was, as he had before staled, the defects in the law of evidence, or, in other words, the number of witnesses which it was always possible, and sometimes necessary, to bring into court. It constantly happened, that an immense number of witnesses were called
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to prove facts which might have been altogether omitted in the trial, because they were not material to the decision of the cause. There was, as it appeared to him, only one way of preventing this evil, the worst consequence of which was not the great and unnecessary expense to which the parties were put,—but, as it caused a great deal of swearing, it caused also, he was afraid, a great deal of perjury. The only way in which he thought this evil could be prevented was, to have recourse to examinations upon interrogatories. In this, following the recommendations which had been made by the commissioners, he proposed to make parties submit to be examined on interrogatories, by which means the facts to be tried would be fairly brought under the knowledge of the court, and of the parties concerned in the cause. He felt convinced, that if the two parties to a cause were made perfectly acquainted with the facts to be tried, and with the evidence to be adduced, much expense would be spared: for there could be no hope of evasion, and a man who had a case which was manifestly unsustainable against the evidence of his adversary, would be advised not to proceed to trial. He was sure that, by this course, one-fourth of the present expense could be saved, and that the number of causes would be diminished in the same proportion. He knew it had been said, that to lessen the expense of legal proceedings, or, in other words, to make law cheap, would be productive of evil, and not of good. He could not concur in this sentiment. He admitted that to make law cheap would have a tendency to increase litigation, and he was not prepared to deny that litigation commonly produced angry feelings between man and man. While he made these admissions, however, he must say that he thought the great expense of legal proceedings was a far greater evil than increasing litigation. He was strongly confirmed in this opinion by the notorious fact that our present expensive system of litigation gave rise to feelings than which none more angry, none more bitter, could be excited by any system which the perverted ingenuity of any man could invent. What, he would beg their Lordships to consider, must be the feelings of that man, who, conscious that he had been injured by an opulent neighbour, and that he had a good cause of action, was restrained from attempting to obtain redress by the

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fear that the expense of the process would reduce himself and his family to poverty? Must not such a man feel more bitter and more lasting hatred, both against his neighbour and against the Government, who in effect actually denied him justice, than any degree of litigation could possibly excite? While justice could be defeated by formal objections, which was now the case, and while a man might be ruined as well as lose a just cause, they tolerated evils, allow him to say, far greater than any that could arise from the prosecution of any number of cases which could be attended with no injurious consequences to the parties. So much, then, with regard to the objection, that by admitting examination on interrogatories, they would lessen the expense of legal proceedings, and so increase litigation. Another objection which had been made to the proposal of examining parties on interrogatories was, that by disclosing the case, they would open the door to perjury. This he positively denied, and he appealed to every man who had had experience in the matter to say whether his experience did not tell him that the contrary would be the fact,—whether he had not invariably found, that causes which were best known, had always been the causes which were most satisfactorily decided. But further, it had been objected that it was not proper to put the parties to examination upon oath. This, however, could be,— nay, was—done every day under the existing law, and that objection therefore was not entitled to much weight. It was asked, would you put the party on his oath, in order to make him disclose the circumstances of his case? He answered yes; for that such a course would be beneficial; and if its novelty was made an objection, he reminded those who made the objection that this might be done already. A party who had a claim against another, but possessed no means of proving it, might go into the Court of Chancery and get the testimony of the defendant in support of his claim; at least by filing a Bill against him he could compel him to answer upon oath, but he must go there and do this at an expense of 200 l.; whereas, if he were permitted to go to the Courts of Common Law for the same advantage, he might do it at the expense of a smaller number of shillings. The only difference, therefore, between the present practice and that which he proposed, was as to the price at which the
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advantage should be obtained. With respect to the place, he thought there could be no doubt that the Court of Common Law was the best place for a plaintiff to go to for such a purpose. An examination on written interrogatories was always insufficient. He had heard that a noble and learned Earl, not then present, had once said, that he must be a bad drawer of an answer if he was not able to get rid of the effect of the questions in chief. In such a case the answer was not that of the parties, but of the parties, the agents, and the Counsel. Here it was, that to a certain extent he departed from the recommendation of the Commissioners, who said, that these interrogatories must be either written or oral. In his opinion they ought always to be oral. The Commissioners then said, that they did not recommend questions to be allowed, other than those which had been previously put upon paper. To that restriction he was opposed, for he knew, from the experience of his professional life, that the answer to one question often suggested another, which might never have been necessary but for the mode in which the first was answered. He should, therefore, recommend that all questions the Counsel might think necessary should be put, and that the questions and answers so put should be entered on the proceedings, and returned to the Court after the examination had been closed. He agreed with those who thought that questions which the Court might deem improper should not be allowed to be put, and he should, therefore, propose to reserve to the Court the power of expunging any questions or answers which in their judgment they should deem improper. He recommended this part of the plan to the attentive consideration of their Lordships, and he had no fear, if it should be adopted, as to the benefit that would result from it. He believed it would produce a diminished expense in law proceedings, and would much facilitate the Trial by Jury. There was one other instance he might have mentioned, in which a party was subjected to examination. He alluded to the case of a bankrupt, who was always examined by the Commissioners, not on interrogatories, but by a viva voce examination. The same rules of justice ought to be applicable in all cases. If it was not fit that a plaintiff or defendant should be examined, it was

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not fit that a bankrupt should be subjected to examination. Unless their Lordships could show some distinction between the cases to which he had alluded, he thought they would agree with him that his plan ought to be adopted, or that the power now possessed by Commissioners of Bankrupts ought to be taken away. If he stopped there, he thought he should have shown that the Bill he proposed possessed abundant advantages to recommend it to their notice. So far as he had hitherto gone, his object had been to render trials cheap and easy, and he humbly conceived that if he were to stop here, he should have made out a sufficient case to warrant their Lordships in acceding to his proposition. But this was not the extent of his measure: with the permission of their Lordships, he intended to go further, always with the view of lessening the expense, and abridging the delay, of legal proceedings. It would probably be in the recollection of many of their Lordships, that an Act was lately passed, of which the object was, to get rid of sham Writs of Error. Much good had doubtless been effected by this Act, but it had evils which were not attended to by the framers of the measure. Before the passing of that Act a party could put his adversary to great expense, and could effect great delay in the final adjudication of a case, by resorting to the vexatious proceedings which sham Writs of Error left open to him. Under the existing law the same party who could no longer have recourse to a sham Writ of Error, proceeded to the very last stage of the trial. This party might be totally destitute of all means of defraying the costs of the action when decided against him, and his unfortunate, though successful adversary, would be fixed with the payment of the costs. Now this was not advantageous to the one party, and it was most grievous to the other party. He proposed, therefore, to alter this system, and to remedy the evil it carried with it. In doing this, he hoped it would not be considered that he proposed to vest too much power in the Judges. He confessed, that in his opinion, the Judges might be trusted with the greatest extent of power which it was safe to commit to any men, but it might be that he was wrong in this, and that he was prejudiced in favour of the Judges by having been so long one of them. However, it was no great power which he now
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proposed that they should be invested with. His proposal was this,—namely, that when the Judges should see, upon the face of the examinations, that a party had no cause of action, or no defence to an action, the cause should not proceed to trial unless such party gave security for the costs which would be incurred thereby. He need hardly observe, that he did not. propose that any such power should be exercised by a Judge when facts were in dispute. In such a case, a Judge and Jury only could decide, and far be it from him to propose that any one else should pronounce in such a case. This power would be exercised only in cases when certain facts were admitted, and upon the face of which admissions it was manifest, either that the one party had no cause of action, or that the other party had no defence. In either case it was only just to the other party that he should be secured against the payment of those costs which, when the adjudication of the case was made, would and ought to fall upon the unsuccessful party. Thus their Lordships would see that no man would be prevented by his proposition from carrying a cause as far as he chose to carry it; that was to say, as far as the process of the law, as it now stood, would allow him to carry it. His proposition merely went to this— namely, that every man resolved upon such a course should give security that no other man should suffer by it. This was one of the occurrences to which he had alluded, when he told their Lordships that there were evils under the existing system far worse than any which had been foreboded from cheap law. The beneficial results of the power with which he thus proposed to invest Judges would be most felt, as their Lordships, he was sure, would see, in cases where there was not a single fact in doubt. These it was manifestly absurd to send to a Jury; and it was in all respects most desirable that such cases should be decided by the Judge. To the Judges, therefore, he proposed to give this power,—allowing, however, at the same time, either of the parties to put such a case upon record. The Bill would empower the Judges at once to determine any question of law raised in a case, reserving leave to cither party if he thought proper, to have it solemnly considered. At present the Judges were often obliged to go through the labour of a trial, and the parties to submit to the expense, when not one

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question of fact was in dispute, and when the Court did not know the real point at issue. In the Court of Common Pleas there was a case of that sort. It was an action brought against a learned gentleman Mr. Jekyll in his character of executor, and the action was in the form of money had and received. The plea was non assumpsit. He would state the fact to their Lordships, and they would then see that neither by the declaration nor by the pleadings could the Court know the real point to be decided. The defendant was the executor of Sir C. Bunbury, who died seized of a copyhold estate. That estate had formerly belonged to one person—from him it descended to two others, and through them to fourteen other persons. It was the custom of the manor of which that estate was part, that at the death of the tenant a heriot of the best beast should be paid to the Lord. The question at issue between the parties was, whether the executors should pay the fourteen heriots in respect of the fourteen parcels into which the estate had been once divided, or only one in respect of the possession of the last tenant in whom all the titles of all the preceding owners had been vested. Ail the facts were admitted in that case, but for the want of the power he now proposed to give the Judges—witnesses were summoned from Wiltshire and Norfolk, in which last county the estate was situated, in order to prove facts that were not at all in dispute. In consequence of this, great expense was incurred, and great delay occasioned. If the Bill now proposed should be adopted, it would appear what was the question in the Cause and the Court would order it to be put into the shape of a special case or a special verdict, and the Cause would be over in fewer months than it now occupied years. By the adoption of these means both parties would be saved in costs. He now came to another part of the subject. As he had taken away the means of delay, he should propose something as a security for the defendant in a certain class of cases not hitherto considered. It was known, that when a debt was due, or when the title to premises could not be defended by the tenant in possession, immediate payment of the debt, or still more immediate surrender of the premises, might be attended with ruinous consequences. With a view to remedy that evil, he should propose a clause, that
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when a party came into Court, and acknowledged that he had no answer to make to the plaintiff's demand, a power should be vested in the Court to give time to the defendant, not exceeding three months, for the purpose of enabling him to deliver up the premises, provided that, in the mean time he gave security for the due execution of the judgment of the Court. He did this, in order to protect a man who might be engaged in a profitable trade, and who might be ruined if called on instantly to pay a very large sum, or to deliver up premises in which he was carrying on his business. It was to obtain such an advantage that sham and dilatory pleas and Writs of Error were now frequently resorted to. By the present practice, any man might have that advantage. Under that which he proposed, none would enjoy it but those who acted honestly and fairly. There was one other thing to which he wished to allude. The law of England differed from that of every other country in one respect. He could not but think the other countries were right and we were wrong, because we alone differed from all the rest, particularly as to the point he was about to mention, and he was of that opinion, especially, because this difference did not turn on any peculiarity in our institutions, in the tenure of our property, or in our state of society. By the law of England, the man who built on a property of which he was in possession, might afterwards, if turned out by a plaintiff who recovered in a possessory action, be compelled to deliver up the land with all the buildings upon it, and to yield for the plaintiff's permanent advantage all the improvements he had made. The noble and learned Lord on the Woolsack knew that that was not the law of Scotland, nor was it the Roman law, nor was it the law of France, of Holland or of Spain, nor indeed of any other country but England. In all the countries he had named, when a party honestly believed that he was the legal owner of the land of which he was in possession, and in that belief made improvements upon it, though another might afterwards prove a stronger title to the land, he was not obliged to give it up till he had been paid the value of the improvements, or till he had been allowed time and the means to take them away, leaving the estate, however, in as good a condition as before he built upon it. That, as their Lordships knew, was not only the law of

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other countries, but it was a rule founded upon a principle of morals recognized alike by the Heathen and the Christian. In that respect, our law ought to be altered, and where the property was recovered from a man who, when in possession, had reason to think that he was the bona fide owner of; it, and in that belief had expended money upon it, the Court should have authority to suspend the issuing of the writ of execution till he had taken away the improvements he had made, or till the other party, who had been enriched by the improvements, had paid him the value. He did not hope to satisfy their Lordships that all he proposed ought to be adopted; but if the past pursuits of his professional life enabled him in any manner now to improve the administration of justice, he should be amply recompensed for his labour. He re-stated, that he did not mean to press their Lordships to a decision now, but should propose that the Bill be read a first time this night, and a second time before the adjournment, and then the Bill need not be committed till after the Christmas recess, and during that period (though he was sorry that some of the Judges would be occupied with more important labours), he had no doubt that all of their Lordships who were at liberty would most willingly afford him their assistance. He moved that the Bill be read a first time.
Lord Tenterdensaid, that it was not his intention to advert on the present occasion to the different topics to which his noble and learned friend had alluded in his able and eloquent speech, much less to meet them with any opposition. He should give his best attention to this Bill, or to such parts of it as in his judgment he should consider to be improvements in the existing law. He only rose on the present occasion to prevent it from being supposed that he assented to the Bill by letting it pass by in silence. There were some points in the Bill with which at present he could not agree: but he would take time to consider it more maturely before he gave a decisive opinion upon it.
The Lord Chancellorconcurred with what had fallen from the Lord Chief Justice on this very important proposition of his noble and learned friend. Undoubtedly, his noble and learned friend had gone over a large space; and the changes which his Bill would make in the law were neither slight nor unimportant. He there-
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fore entirely agreed with the Lord Chief Justice in thinking that their Lordships should have full time for considering the Bill now proposed to them. The last point to which his noble and learned friend had alluded in his speech was the most difficult of all—he meant the plan for enabling parties to recover the value of the improvements which they had made on lands, in cases where they had believed themselves bona fide to be the rightful possessors. The difficulty in all such cases was as to the bona fide possession; and the Civil Law did not merely give to the bona fide possessor the value of his improvements—it also gave him the fructus prœdii. His noble and learned friend might perhaps intend to interfere with the action for the recovery of mesne profits.
Lord Wynfordsaid, that he had no intention of the sort.
The Lord Chancellorsaid, that his noble and learned friend was aware that the principles of the Civil Law, as they affected this question, went much further than he proposed. He would not, however, then discuss that or any other points likely to come into dispute. His Lordship accordingly concluded by repeating his conviction, that time should be allowed to weigh the changes which this Bill would make in the law, especially as some of its clauses were novelties, and unlike the majority of them, which were recommendations from the Commissioners.
Lord Wynfordsaid, he should consider corn sown by the party against whom the judgment was given, as a species of emblements, and should leave the party recovering the lands to take it upon such terms as the Judges might think proper.
Bill read a first time, and to be printed.