Lords Sitting of 28 September 1831

MINUTES.
Bills. Brought up from the Commons; the Galway Franchise. Read a third time; the Sale of Beer Act Amendment; the London Coal Regulation. Committed; the Wine Duties.
Petitions presented. By a NOBLE LORD, from Barnstaple, and by the Marquis of HEADFORT, from the Parish of Bective, in the County of Meath, in favour of Reform. By the Earl of SHAFTESBURY, from the town of Galway, in favour of the Galway Franchise Bill.
A Conference on the subject of the Amendments made by their Lordships in the Lunatics Bill, was held in the Painted Chamber.

COURT OF CHANCERY.
The Lord Chancellor The Lord Chancellor rose to present to their Lordships a Bill, the heads and contents of which he had stated to their Lordships at an early period in the last Session of Parliament. It was the third of that series of measures which he had proposed to their Lordships as fit to be adopted by the Legislature of the country, with a view to the amendment and improvement of the law and practice of the High Court of Chancery. The two first of those measures had already passed through their Lordships' House, the second of them, the Bankruptcy Court Bill, having received their Lordships' final sanction, and having been read a third time last night. The present Bill, being the third of those measures, related to the proceedings and course of practice in the Master's Office, and embraced the improvements which he proposed to introduce into that department of the Court of Chancery. He should not proceed further at present than merely to lay before their Lordships a brief and general outline of the object of this measure, reserving to a future occasion those explanations which might be required with regard to its details. The object of this Bill, as of the other measures which he had already introduced, was to shorten the delays, to lessen the expense, and to introduce, as far as possible, a more uniform certainty into the decisions of the courts of Equity in this country, beginning with the High Court of Chancery, and with the matters appertaining to its jurisdiction. He should state in a few words the manner in which that object was sought to be effected by the Bill which he held in his hand. One of the great evils connected with the practice of the Court of Chancery, and one which more immediately
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called for a remedy was, the delay which took place in the course of the proceedings in the Master's Office. Their Lordships were aware that many causes in Chancery were referred in the first instance to the Master for his inquiry and report. A great number of nice points were decided upon by the Master, and after he had made his decision on these points, his decision was embodied in the form of a report. Now, in this important stage of the proceedings in a cause in Chancery, a great deal of delay, and a considerable increase of expense, were occasioned by the practice which at present existed. It was with a view to remedy those evils that he (the Lord Chancellor) had prepared this Bill. In preparing it, he had followed the same course as that which he had adopted in the instance of the Bankruptcy Court Bill, which had received the high sanction of that House last night. Having determined on the principles of his plan and having framed them into the shape of a Bill, he sent that Bill to gentlemen of the highest practice and standing in the Court of Chancery for their opinion. The result of their determination was the present measure, which, in his (the Lord Chancellor's) view of the matter, by no means went sufficiently far enough to meet the exigencies of the case. But it was a reform to the extent to which it went, and he thought that he should be erring on the right side in proposing it to their Lordships, instead of bringing forward what might be considered, perhaps, a too rash and enlarged measure of reform. Besides, if this measure should be found, as he was sure it would, to work well, it would be an encouragement, and it would afford a safeguard for carrying the principles of reform further. The following, then, was the outline of the present measure, and the result of the deliberations of those learned individuals to whom he had referred the matter. It was proposed, that the Masters should sit in Court during the day, and in the evening, too, if it were necessary, for the accommodation of suitors, and that they should give as much of their time as possible to the important business of their office. The manner in which that business was at present conducted before the Master was one great cause of the delay which occurred in the Master's Office. He alluded particularly to the manner in which objections were taken to the decisions of

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the Master, and to his final report. As the practice at present stood, objections could be taken in the course of the proceedings in the Master's office, to his several decisions on the various points of the case, and after his final decision had been made, objections could be taken to the whole of his report; and in both instances these objections were carried before the Lord Chancellor for his adjudication. The practice stood thus:—The Master, when the case was referred to him, went over the various points of it; upon each of his decisions in those several points, the party in the cause might take exception, and have that exception argued before the Chancellor, and when the Master's report was finally made, they might again take exceptions to it, and have them also adjudicated by the Lord Chancellor. Now, with a view to do away with the delay which was necessarily caused by this practice, one of the objects of this measure was, to prevent those objections which were raised to the decisions of the Master, previous to his making his report, being brought before the Lord Chancellor; and it accordingly proposed that those objections should be brought before three Masters sitting in Court, and be adjudicated by them. If the party failed in their objections there, the Master's report was made, and it was open to them then to take exceptions to it, and to have them carried either before the Chancellor, or the Vice-Chancellor, for final adjudication. By this alteration the suitors would be provided with all that they wanted—a tribunal to decide those objections which arose in the course of the proceedings in the Master's Office, and nine out of ten—indeed he would go further, and say that ninety-nine out of a hundred—of the objections at present carried to the Court above, would be disposed of by those three Masters sitting judicially in the Court below. There was another important change which this measure went to introduce into the practice of the Court of Chancery, and that related to the mode of taking depositions in that Court. That change consisted in the introduction of a more intelligible, reasonable, and common-sense-like kind of examination, than the very absurd and very unsatisfactory practice which at present prevailed in the Court of Chancery, of taking all examinations upon Written documents. The consequence of that practice was, that a statement on one
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side might comprise a number of questions to which the party on the other side could not possibly give any answer; that a person acquainted with the second and third question might know nothing whatever of the first; and that cross objections might be put in, which could not possibly be answered without the means of a viva voce cross-examination. Now, his object was, to introduce, in the stead of that unsatisfactory practice, the right mode of examining parties—namely, by the viva voce examination of witnesses on oath, subject to cross-examination and re-examination, and that in the presence of the Court which was to decide on the value of their testimony. That was a step—he would say a stride—to be taken in the reform of the Court of Chancery; but though he was not disposed or prepared at present to go to the whole length of that stride, yet the measure which he now proposed did not stop far short of what he desired in that respect. His present proposition to introduce the practice of taking evidence by the viva voce examination of the witnesses, was a great and important change in the practice of the Court of Chancery—a change which introduced there a rational and intelligible kind of practice, that would remedy to a considerable extent much of the delay and expense attendant upon proceedings in that Court. There would still remain one evil in the practice, even after this change should be effected—namely, that the witnesses would be examined by one Judge, while another Judge would have subsequently to decide upon the value of their testimony. If, however, the step which he now proposed to be taken should succeed, as he was certain it would, he did not despair of being able hereafter to induce their Lordships to carry that important change still further, and to give the Court of Chancery itself the power to make inquiries into the facts of the case, to examine the witnesses, to hear their depositions in open Court, their examination and their cross-examination, and then to decide, like the other Courts which adopted that practice, upon the value of their testimony. There were several other important improvements proposed to be effected by this Bill; but he should not go into a detail of them on this occasion. He thought it sufficient at present to present this Bill to their Lordships, and to move that it be read a first time. He would then propose that it should be

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printed, and that the further consideration of it be postponed for the present. His reason for postponing it for the present was this—he was fully aware of the extent and importance of the change which this Bill proposed to effect, and he was not for taking such a step rashly or without the most mature deliberation. Taking into account the important measure at present before them, and more especially the very important measure which would immediately occupy their attention, almost to the exclusion of all others, he did not think that it would be wise or judicious to press this Bill this Session. He would therefore propose, that it should stand over, and it might undergo a thorough discussion during the vacation—if, indeed, they were to have any vacation at all. By standing over to the next Session, the Bill, having been now printed, might be thoroughly discussed throughout the country after the present Session of Parliament should have an end. He forgot to mention one important change which this Bill introduced with regard to the payment of salaries in the Master's Office. It abolished the fees which now formed a great portion of the payment of the Masters and their clerks, and it provided that they should be paid by fixed salaries, with the exception of a small proportion of the salaries of the subordinate officers, which would be still defrayed from fees, with a view to quicken their exertions. With that single exception, all the salaries were proposed to be fixed salaries in future.
Bill read a first time and ordered to be printed.