Lords Sitting of 16 April 1833

MINUTES.
Bills. Read a second time:—Mutiny.
Petitions presented. By Lord SUFFIELD, from fifty-one Places; by the Earl of MORLEY, by the Earl of ELDON, by the Earl of ALBEMARLE, by the Marquess of LANS-DOWN, by the Duke of RICHMOND; and by Lord BALTIMORE, from a great many Places,—against Slavery.—By the Bishops of St. ASAPH, BANGOR, LONDON, and LICHFIELD, the Earl of ROSEBERY, the Duke of SOMERSET, Viscount MELBOURNE, and Lord BEXLEY, from a Number of Places,—for the Better Observance of the Sabbath.—By the Earl of ROSEBERY, from Dollor and Lorn, against the present System of Church Patronage in Scotland.—By Earl DIGBY, and by the Bishop of LICHFIELD, from four Places—against the Sale of Beer Act—By the Earl of MORLEY, and the Bishop of LONDON, for a Factories' Regulation Bill.

SUITS AT COMMON LAW.
The Order of the Day for the Second Reading of the Bill, intituled "An Act to Diminish the Expense, and Prevent the Delay of Suits in the Common Law Courts at Westminster" having been read.
Lord Wynfordsaid, that in moving the second reading of the Bill which he had brought into the House, he should not have troubled their Lordships with many observations, had he not been given to understand that it was to be opposed by two noble and learned friends of his, for whose judgment he had so much respect that he would not venture to stand up against them, had he not authority greater than that of his noble friends to support him. He had the authority of their Lordships: for the Bill had twice passed this House. He had the authority of one of his noble opponents (Lord Lyndhurst), for he was on the Woolsack when it passed the first time,—must have known of it,—and did not oppose it,—and could not, therefore, have had any objection to it. The Bill passed a second time since his noble and learned friend, now on the Woolsack, came into office: he could have had no objection to it, for he gave it no opposition. Indeed, his noble friend introduced the clause to which his other noble friends most object, into his Local Judicature Bill. He had further to observe, that when he first introduced this Bill into their Lordships' House, he sent one copy of it to each of the learned Judges; two of these learned Judges suggested alterations which he adopted, and these formed parts of this Bill. From the others, he had heard nothing,—he presumed they had no objection to the Bill. If any objection had
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occurred to them, civility to a retired Judge would have induced them (if they had no higher motive) to state to him that objection. His learned and excellent friend, Mr. Justice Gaselee, suggested to him some amendments, as did also his late noble friend. Lord Tenterden, All their Lordships knew the great learning and ability of that excellent Judge, whose loss to the administration of justice it would be difficult to supply; but only such as had the advantage of knowing him in private life, were aware of the timid caution with which he proposed or assented to any alterations in the law,—yet, on his introducing what he considered a necessary security against the power of examining parties being abused, (namely, the requiring that no such examination should be had without the consent of the Court,) he gave his consent to the Bill. In what quarter the new light had risen which now guided his noble friends, he did not know. He had had a longer acquaintance with the Courts of Westminster than any noble Lord now present, except his noble friend near him (Lord Eldon); he had seen more of the practice of Courts of Common-Law than he had; and he was convinced, that until this measure, or something like it, became the law, we might boast of the excellence of our laws, but we should pay, for obtaining the assistance of those laws, far beyond what, in ordinary cases, it was worth. The cost of the remedy made it worse than the endurance of the disease, and he had known suitors ruined by the expenses of a cause in which they had been successful. This Bill was entitled a Bill for Diminishing Expenses, and Preventing Delays in Suits of Common Law. Now, if this Bill were calculated to attain those objects, there could be no valid objection urged against it. Both the evils which this Bill was designed to remedy notoriously existed. Formerly it was thought, that law could not be too expensive; now a very different opinion prevailed, and very justly. The Bill was calculated also to prevent litigation; and he believed, were it to pass into a law, it would have the effect of preventing nine cases out of ten from going to trial, while in the tenth case it would cause the expenses to be diminished one-half. When he first meditated bringing in the Bill, it was his intention to introduce a clause in it with reference to special pleading, and reduce it to its ancient limits, so much inconvenience

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had been experienced from the present practice; but, in consequence of the recommendation of the Common Law Commissioners, who had suggested a measure, having that subject in view, he had abandoned his intention, and had not embodied the subject in any clauses of the Bill now before the House. The House had already dealt with that subject in a Bill which had been recently introduced and discussed. The next cause of expense, after pleading, was the bringing up of witnesses at the assizes to prove facts which ought not to be disputed, and which would not be disputed hereafter, if his Bill were made law. The first clause of that Bill enacted, 'that any plaintiff or defendant in any action might, with leave of the Court, or some Judge thereof, at any time after service of the writ, deliver interrogatories to the opposite party or parties, for the discovery of any fact or documents material to the support or defence of the suit, or to the proving or reducing damages, either on a trial, or on the execution of a writ of inquiry, and might require such opposite party or parties, by notice in writing, to be examined on oath before some Commissioner, to be appointed by the Chief Justice or Chief Baron of the Court in which the action shall be brought, on such interrogatories.' In the former Bill which he (Lord Wynford) had introduced, his noble friend, the late Lord Tenterden, had suggested the alteration, making it incumbent on the parties to obtain the consent of the Court in which the action was brought before the par ties should be subjected to the interrogatories. He thought the alteration pro posed by that eminent man was beneficial, and therefore he consented to it. With respect to the principle of examination proposed by this clause, there was nothing in it but what already existed in another Court—the Court of Chancery. When information was wanted which the parties themselves could alone supply, it was usual to file a bill of discovery; and, if the other party also wanted information from the one opposing, a cross bill was filed. But this was an expensive process, costing not less than about 200 l., and the object of his Bill would be attained by a very trifling expense indeed. He would give to the Common Law Judges all the powers which a Court of Equity upon this subject enjoyed. He would have the
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Common Law Judges invested with the power of protecting witnesses circumstanced as the Bill contemplated. The power of the party interrogating, it was, however, proposed should be limited. A clause in the Bill enacted 'that no party interrogated should be obliged to answer any question, or produce any document, which should have a tendency to prove any criminal charge, or to subject him or her to any penalty, or to affect any estate or interest, the title to which was not in dispute in the cause; nor to compel any purchaser or mortgagee, after such purchaser or mortgagee should have sworn that he or she had, bonâ fide, paid a full and valuable consideration for the purchase or, bonâ fide, lent a sum on mortgage, without any knowledge of any defect in the title of the premises bought or mortgaged, to disclose the title of such purchaser or mortgagee.' The clause also gave the Court the power of imposing such conditions on the party interrogating as would prevent an improper use being made of the examination. It was very important that sometimes the plaintiff or defendant should be examined; and in numerous instances, where cases such as he had described had been brought in the Court of Chancery, the facts so disclosed were all that were required for obtaining justice. Who was it knew all the facts of the case? The plaintiff and the defendant; if, therefore, they were examined, all the facts would come out, and upon them the Court might pronounce judgment. He appealed to the noble Lords who were conversant with Chancery practice, whether cases were not often tried in Courts of Equity in which there were no witnesses but the plaintiff and the defendant? The whole case as to the facts being thus opened to both parties, there would be no occasion for them to go to trial at a ruinous expense to both parties. It would frequently happen that all the facts necessary for the final judgment would come out on the examination of the plaintiff and the defendant. Now, he proposed, that if there were no additional facts to be made out on either side, the Judges should be empowered, after that examination, to give judgment at once. But, if either party should suggest that there was an additional fact to be established, then an issue should be sent down to try that fact, and that fact alone; and then, when that fact was added, the Court should proceed to

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give its decision. Concealment of facts too often led to a denial of justice; but truth had nothing to fear from a full exposure. Attorneys too often took advantage of their clients; and when actions were terminated, it was not unusual to hear attorneys say, "if you had told me what facts have been now proved, I should have dissuaded you from pursuing the cause." But how often did it happen that, notwithstanding the disclosure of the facts of the case by the parties litigating, actions were not abandoned! He really believed that many solicitors advised actions merely for the purpose of putting money into their own pockets, although they were aware it was done at the expense of their clients. If the Bill which he had the honour of introducing were adopted, it would prevent such actions from being brought to trial; for the disclosure of facts would make the parties acquainted with the weakness or strength of their cases; and this was similar to what took place in what were called "The Courts of Conciliation" which existed in Denmark. In this respect also it was similar to the principle adopted by the noble and learned Lord on the Woolsack in one of his bills which had been introduced to the House. He proposed, also, that if after his examination was closed a plaintiff or a defendant, who had no just ground of action or of defence, should persist in maintaining the action from a love of litigation, he should be compelled to give security that he would pay all the costs which his love of litigation occasioned to his opponent. But it might be objected to if there were no appeal, and, therefore, he had introduced a clause by which the orders of the Judge might be reviewed or altered by the Court to which he belonged, and the party placed in precisely the same situation he was in before such order had issued. There was, as the law stood, an unwillingness to admit facts, lest the parties should be prejudiced thereby. This would be obviated by the present Bill. Where the facts were admitted, by the Bill now before the House, and the case turned upon a question of law, then a special verdict should be taken, and the case argued before the Court. By this Bill, all means of delay, all chicanery would be got rid of, and as under this alteration of the law, the defendant would not be able to evade judgment, he thought that it would be only fair to arm the Court with power
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to extend to him time for satisfying it. He proposed that the Court, on receiving security, should be enabled to suspend the execution of the judgment for three months. By another clause of the Bill it was proposed to enact, that the attorney or agent of the plaintiff should deliver to the Sheriff's officer executing the writ, a particular of the plaintiff's demand, "specifying the amount of the debt or damages, or a description of the lands, tenements, or hereditaments, or goods or chattels, for the recovery of which the action was brought." The Court had, by another clause, the power to require the plaintiff or defendant to put in bail for the payment of the costs of the action, if, after reading the examination of the parties, it should appear there was either no good cause of action, or defence. These were the principal points of the Bill, which he now hoped would receive the approbation of their Lordships;—and the noble and learned Lord then concluded with moving "that the Bill be read a second time."
Lord Lyndhursthad listened with all the attention and respect to which his learned friend was uniformly entitled, to the observations with which he had introduced the Bill then under their Lordships' consideration; but he frankly confessed at the outset, that he felt it to be impossible for him to give such a Bill his assent. His noble and learned friend stated, that he had reason to think that the measure, as it then stood, would meet with the approbation of the fifteen Judges. And though, as their Lordships would be aware when he reminded them that yesterday was the first day of term, he had not had a sufficient opportunity of ascertaining the opinion of those learned and eminent persons, he yet knew enough of it to say that it was not favourable to his noble and learned friend's Bill. On subjects of legislation, he was, he acknowledged, not disposed to urge their Lordships to attach any very great importance to what might be the opinion of the Judges, and he should, therefore merely content himself with stating the fact, that they were not favourable to the measure; and if his noble and learned friend supposed they were, he was labouring under a most erroneous impression. Many of those learned persons, in common with himself, entertained a very strong objection to the practice of plaintiff and defendant having

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the power of mutually putting interrogatories to each other, though, doubtless, nothing could seem more plausible than a proposition for effecting a change of that nature in the administration of justice; but his noble and learned friend, when he adopted that principle, found it necessary to introduce certain machinery for the purpose of carrying it into effect; and when their Lordships took the trouble of examining what that machinery was, he had no doubt they would find it so complex and so imperfect, that, instead of accomplishing the objects which his noble and learned friend had in view, it would rather have the effect of increasing both delay and expense—ay, increasing them one hundred fold. In considering a measure of that nature, it was most material that they should look to what the state of the law really was at the present moment; he meant, of course, not the general condition of our whole system of jurisprudence, but the state of the law in reference to the power possessed by plaintiff and defendant of putting interrogatories to each other. At present, as was well known to every lawyer, parties to a suit could file Bills of Discovery. What were Bills of Discovery? Nothing more or less than a series of interrogatories; and what did that amount to, but the possession of the power which the present Bill assumed not to exist; the power by which parties were compelled to answer all the questions put to them, and to answer them fully. Now, he should be glad to learn in what respect did the proposition of his noble and learned friend go to effect any improvement? He wished to know what difference it made whether those interrogatories were put and answered in one Court or in another—whether in a Court of Law or a Court of Equity? It had been said, that the expense of filing a Bill of Discovery was not less than 200 l.; that certainly was a most extravagant description of the expenses necessary. [Lord Wynford had known Bills of Costs, in cases of Bills of Discovery, amount to 200 l.] The whole costs might have been swelled to that amount, but it certainly must be considered an extravagant description, and he must be allowed to say, that his noble and learned friend had not taken the proper pains to inform himself upon the subject to which his Bill related. One of the principles for which his noble and learned friend appeared to contend, was
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the vast advantage of vivâ voce examinations. He had always imagined that the chief advantage derivable from vivâ voce examinations arose from the persons examined being brought into the presence of the Judge who was to decide the question at issue. But that was not what the Bill before them would accomplish. It would do no such thing. The parties examined under it would be heard before Commissioners in the country, for in every case it was provided that the Commissioners empowered to examine the parties would be required to go within five miles of their residence. The parties were obviously not bound to answer upon interrogatories in all cases, and a difficulty immediately suggested itself, how far that exemption from answering was to extend. It was proposed to put it entirely under the control of the Commissioner, although the present practice in the Court of Chancery, in this respect, had been the result of the closest attention by the Judges of that Court to that subject, and a series of decisions in Courts, for the greater part of 200 years past. Having entered so far on the subject as to his objections to the principle of the Bill, he should now direct their Lordships' attention to the machinery of the Bill, or the mode by which, practically, it was expected to bring the provisions of the Bill into operation. It was by this Bill provided that, in all cases where the party required to be examined was out of the jurisdiction, a Commission may issue to examine him. That examination and these answers must afterwards be sent up to the Court here. When they arrived here, a question probably would arise whether the party answering had fully answered, which, as the learned Lord on the Woolsack had learned, was but too frequently a subject of doubt in his Court, with all the skill and caution which was used in those examinations there. Then, again, it was observable that, by the Bill, the party interrogated, his Counsel, attorney, or agent, might object to the sufficiency or relevancy of any answer before the Commissioner, and the sufficiency or relevancy of the answer may be supported by the party, his Counsel, attorney, or agent. Here was a fine project for shortening delay and saving expense, which the Bill asserted was its object in the outset. Well; the question being mooted—the argument concluded, the examination

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decided—of what value was that decision? None; for in the same section the noble Lord provides that his decision, even on the minor points—the mere sufficiency or returning of an answer—shall not be final; the decision being subject to review by any Judge of the Court, or by the whole Court. Here was a fruitful source of expense—fees, costs, and delay. The very orders of a Judge, too, were to be subject to review and alteration by the Court to which he belonged. Questions settled by the examiner, after deliberate argument before him, were to be referred, in many cases, the noble Lord said, to the decision of a Judge at chambers. Now, all in that House who had ever attended a Judge at Chambers must know what chance there was of a calm decision of any matter of intricacy in the hurry and confusion incident to such a jurisdiction. Again, in cases of dissatisfaction with the decision, the party might appeal from the decision. Then all hitherto done was abortive, for a second set of interrogatories might be had, and all the proceedings was to begin over again. In a Court of Equity a party not sufficiently or satisfactorily answering might be punished by attachment at once. Now, he would ask which of the two modes was better calculated to effect the ends of justice? But the noble Lord's Bill provided that in case of any default of a party to be examined, a judgment might be assigned against him. Even this judgment was not to be final: it was merely to be a general or interlocutory judgment—a writ of inquiry of damages must issue; and this, forsooth, was the remedy for delay and unnecessary expense the noble Lord proposed to substitute for the existing mode of getting at a disclosure from interested parties in the suit by means of the equity proceeding by bill and answer. This well-known mode of proceeding now in use he fearlessly pronounced to be far more complete, sufficient, and satisfactory, as well as attended by much less expense than that to be introduced by the Bill now before them. He objected to it because of its defect in principle, as well as because of the cumbrous nature of its multiform machinery, which he feared much would, upon the pretext of various attendances before Commissioners and Judges, be made a pretext for multiplying costs. He objected to the clause that enacted that a portion of the plaintiff's
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demand should always be given to the Sheriff's officers as a needless expense. For it was not too much to assert, that nine in ten, perhaps forty-nine in fifty, causes, ended with the issuing of the writ and its execution. Why then incur so serious an expense in the very commencement of an action? He had lately seen a bill of particulars in a cause which occupied from twenty to thirty sheets. He did not say, that for such a Bill this machinery, cumbrous as it was, might not be necessary, but for that reason, if for no other, though he thought he had stated many, he believed their Lordships would best consult the interests of the public by voting with him on the Amendment. He should now propose, that the Bill be read a second time this day six months.
The Earl of Eldon, after fifty years experience in the profession, felt bound by a sense of duty not to let pass such an opportunity of recording his dissent from the doctrines laid down by his noble and learned friend, by whom the present measure was introduced to the notice of their Lordships. He objected, at the outset, to the proposed plan of examining plaintiff and defendant; and doing that, he felt it to be almost needless to urge any other objection; he would, however, object to the present alteration, on the ground that it tended towards an intermixture of the proceedings at Common Law and Equity. It had, hitherto, been considered one of the greatest merits of which the English law could boast, that Equity and law were kept distinct. There had been something said about the expenses to which attorneys sometimes put their clients; it was not for him to estimate those expenses, but he did remember a Judge, who, while at the bar, never once mentioned attorneys otherwise than with the most perfect respect, but who, the moment he attained to the Bench, never mentioned them without censure; he did not allude to his noble and learned friend by whom the measure was introduced. He entertained not the slightest doubt that the present Bill would lead to increase the expense and delay of law proceedings.
The Lord Chancellorsaid, that he must confess he agreed in some measure with those noble and learned Lords who were of opinion that the Bill now before their Lordships went too far. But that was an objection rather to the details of the Bill, which might be amended, than to the Bill

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itself. He was not prepared to say at this moment, that he should go the length of voting against the principle of the Bill, and throwing it out at once. On the contrary, he was rather inclined to think that it might be advantageous to let the Bill go into the Committee, where the objections to its machinery might be considered and removed. It might be fit and proper thus to give the noble and learned Lord the opportunity of amending the measure. Such being his general view of this question, he should only observe, that with all due deference and respect for the learned Common Law Judges, they were not exactly the best persons to decide what was fit to be done in Equity; and that though, generally speaking, he should say that their authority was great and overpowering when it was in favour of any measure for the alteration of the practice in their Courts, yet, although it was still to be listened to with reverence, it was not when opposed to such alterations, to be deemed of such overpowering weight. That arose, no doubt, from their excusable wish not to sanction changes that were not absolutely necessary. With reference to the present Bill, he thought that upon the whole, it would be the most advisable course, especially as a Bill of a similar nature had twice before passed this House, not to agree to the Amendment, and throw out the Bill, but to allow it to go into the Committee without pledging the House to any particular course afterwards with respect to it.
Lord Wynfordsaid, that if there were objections to the machinery of the Bill, though he by no means admitted their justice, he was bound to say in his own defence, that that machinery was the work of the Common Law Commissioners—it was not his. That part of the Bill had been recommended by them. He was, therefore, entitled to say, that the Judges were in favour of it, for most of them were now Judges. He did not wish to interfere with the Courts of Equity, but to enable the Common Law Courts to do their own business, and he denied that the plan he proposed would increase the expense to the suitor. On the contrary, if that which now required the suitor to go into a fresh Court, could be done in the Court in which the action was already pending there would be a great saving of expense.
The Amendment agreed to, and Bill
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to be read a Second Time this day six months.