Lords Sitting of 8 April 1851

MINUTES.
Reported—Mutiny; Marino Mutiny; Mills and Factories (Ireland).

CLAIM BY THE EAST INDIA COMPANY ON THE GOVERNMENT.
LORD MONTEAGLEwished to put the following question to the noble Lord the President of the Board of Control, namely, whether there would be any objection to produce "any Correspondence which may have taken place between the Treasury and the Board of Control, or any other Department of the Government, and the East India Company, on the subject of a claim for the payment of 400,000 l., alleged to be due on account of expenses of the late Chinese War?"
LORD BROUGHTONbegged, in answer to the question, to say, that it was quite true that the East India Company had made a demand to the amount stated; and it was also true that a correspondence had taken place between some Departments of the Government and the East India Company. He thought it was better for him not to make any further remarks on the subject at present; and he begged to say, that he had no objection to lay the papers on the table of the House.
On the Motion of Lord MONTEAGLE, an Address for a copy of this correspondence was agreed to.

COUNTY COURTS FURTHER EXTENSION BILL.
On the Question, that the House go into Committee on Second Re-commitment of this Bill,
LORD BROUGHAMsaid, that, before the House went into Committee, he wished to call their attention to two important considerations connected with this Bill, namely, whether it would be necessary to increase the number of the County Court Judges; and if so, from what funds would the salaries of those Judges be paid. He found, from official returns, that the average number of days during which the County Court Judges had sat for the last two years did not amount to more than six months in the year, namely, 157 days; and he found also that only ten of those Judges had exceeded that average. Now, it was obvious, that if those learned persons sat more days in the year, they would be able to transact a greater amount of business. He did not apprehend, therefore, that it would be necessary to increase the number of Judges, except, perhaps, in the metropolitan districts. It was proposed that these Judges should be compensated in a reasonable manner for the increased amount of business which would devolve upon them; and a fund for that purpose was already supplied, for the system, he was happy to say, supported itself, and gave a considerable surplus, after paying the officers, namely, 30,000 l. per annum, which was paid into the Treasury. With the exception of the clerks of fifteen County Courts, who had salaries of 500 l. a year settled upon them under a regulation of the Treasury, all the clerks were paid by fees; and the consequence was, that, in one instance which had been mentioned to him only within the last hour, whilst the County Court Judge received a salary of 1,000 l. per annum, the clerk of his Court received 2,000 l. per annum in fees. He would however, say, even if there were no surplus, that the system would continue to support itself from the additional number of fees which the greatly-increased amount of business could not fail to produce. He must again, as he had often before, deprecate an unwise system of false economy, the only effect of which must be to cripple the administration of justice. He need not refer to a more striking instance than that which was exhibited in the Court over which his noble and learned Friend on the Woolsack presided, where the greatest injury was done to the suitors

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in consequence of the inadequate judicial staff of that Court.
House in Committee.
Clauses 1 to 12 postponed.
On Clause 13,
The LORD CHANCELLORsaid, that he had been represented as not friendly to the cause of law reform.
LORD BROUGHAM: I did not say so.
The LORD CHANCELLORdid not mean to say that his noble and learned Friend had said so; but he could assure him, that he would find him (the Lord Chancellor) a willing coadjutor in all those attempts to reform the law which his noble and learned Friend so often, and so much for the benefit of the country, had made. But extreme uncertainty had been introduced in modern times into various branches of the law, in consequence of alterations in the law which had not undergone that full consideration which was necessary to render them beneficial to the country. The clauses to which he was about to call the attention of their Lordships might be divided into two parts—one which referred to certain accounts, which might he inquired into by the Judges of County Courts; and the other, which gave a jurisdiction to the Judges to take the examination of witnesses in certain cases. He quite agreed with his noble and learned Friend in thinking that there was nothing more injurious to the public interests than a disinclination to apply the public funds to the due administration of justice. They often heard of the thousands of cases which were disposed of in the County Courts; but it should be remembered that, in point of fact, 99 out of 100 wore disposed of in a few seconds. They were questions of butchers', bakers', and milkmen's bills, and the Judge had little more to do than decide whether the amount should be paid; in instalments of two or three shillings per week. It would really be, for the purposes of such causes as these, a mere waste of talent and money to have persons of superior acquirements employed in the duty of presiding over the proceedings. When, however, the business of the County Court Judges extended to matters embracing contracts and more complicated questions, where uniformity in the administration of the law was desirable, it became of extreme importance to see that the tribunal was a competent one, and to have an efficient court of appeal established. Looking then at the extent of traffic carried on in this country, and looking also at
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how large a proportion of the causes in a County Court under the proposed alteration came up to the sum to which they would now raise the jurisdiction of those Courts, it must be obviously subversive of the principles of justice to have one rule or practice prevailing in the County Court of Kent, and something totally different in force throughout Yorkshire. The law must he uniform. He thought also that in several clauses of the Bill they would find that many duties were imposed upon the Judges of the County Courts which such gentlemen could clearly not be competent to perform. Then he had another objection to the measure, which objection lay chiefly against the clause enabling the parties to refer their causes; they would, under the present Bill, be enabled to do so without obtaining the assent of the Judge, at least in that class of causes specified by the Bill. [Lord BROUGHAM: Only if the court should send them.] In the Bill of 1833 it was provided that where parties desired such reference, the question went before a Master in Chancery, and he determined whether there should be a reference or not. But one of the most prominent objections which he had to the measure was, that the Judges of the County Courts were originally selected to perform certain duties, and were appointed at salaries of 1,000 l. a year. Now, with the most perfect respect for those gentlemen, he would say that most of them probably did not enjoy very bright prospects in their profession; they could scarcely be supposed to do so, seeing that they were willing to retire on so very moderate a sum. Those Judges, he would repeat, had been appointed on account of one set of duties, and they now sought to assign to them the performance of another set of duties requiring greater and more improved qualifications. He would put this question to his noble and learned Friend, who once held the Great Seal with much advantage to the public—would he, when placed in that high office, have appointed to the situation of Master in Chancery gentlemen of that rank in the profession which the great majority of the Judges in the County Courts held—he would ask how many of them would his noble and learned Friend have been willing to place in the position of Masters in Chancery? Although he wished to speak of those gentlemen with great respect, yet he begged to observe that many of them had been judges of little local courts. No doubt they had

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been well and honestly selected, but not for the important and onerous duties now sought to be imposed on them—those 60 men were to go into all the duties which a Master in Chancery performed. They might, under the Bill, be called upon to deal with administration causes of great importance, and those causes which, at the commencement, appeared the most simple, often turned out to be the most complex. In such causes it would be their duty to preside over proofs of debts, to inquire what specific liens affected the estate which formed the subject of the suit, and to determine which were entitled to priority; and the Chancellor or the Vice-Chancellor might direct any portion of these causes to be taken before the Judges of the County Courts. It appeared to him that by such legislation they would waste a great deal of time and incur great expense, besides being a great oppression on the parties. Further, it was not to be overlooked that the country solicitors did not possess the sort of experience necessary for conducting business in a Master's Office. In questions of title and other matters which came before the Masters, the London agents were peculiarly acquainted with the practice; and sometimes it was thought necessary for counsel to attend; and those, too, not strangers to the cause, but persons previously engaged in it, for they alone, in many of those cases, were capable of affording the Master that assistance without which justice could hardly be well administered. But if these inquiries took place in the country, parties must be deprived of such efficient aid. He did not say but that in the course of the year there would be half-a-dozen causes which might usefully go to the Judges of the County Courts; but they surely must not go about creating a system for the sake of those half-dozen causes. However plausible the plan might sound in theory, it would be most unwise thus to employ the Judges of the County Courts in matters of which they could have had no experience. He was therefore opposed to the first branch of these clauses. The second series of clauses might perhaps be adopted with some advantage. These clauses related to the taking of evidence vivâ voce in the County Courts. He admitted there were examinations which might most conveniently be taken in the country, which would be much better than the system of written interrogatories and written answers, which prevailed in the
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Court of Chancery. Still, however, these clauses were not free from objection, and when he considered the facilities of railway communication which were now-a-days enjoyed, they were the less necessary than when the expense and delay in travelling were much greater. It might be desirable that, instead of the present mode of examining witnesses in the country, some other mode should be taken—that the County Court Judges should have the power of taking their examinations vivâ voce. He was, however, afraid that if counsel were to attend these examinations, the expenses, in place of being diminished, would be increased. He would not object to try the experiment, although he was not very sanguine as to its success. Under the present system, if the Master made any mistake, any error, in London, there was exception taken to his report; but he ventured to say that the expense, the delay, and the difficulty, on account of mistakes arising from the want of information regarding the practice of the Courts, would, under this Bill, be a very great misfortune. He thought these clauses were framed in the absence of that full consideration which was so necessary in matters of this description. He would be told by his noble and learned Friend (Lord Brougham) that this was a great blunder—that it was all a mistake. He would also be told that these clauses had been approved of by persons high in authority; but, notwithstanding, after having fully considered the subject, he was of the opinion that the first clauses should be omitted. The second he would not oppose.
LORD BROUGHAMsaid, his noble and learned Friend had told them what he (Lord Brougham) was likely to say. Perhaps they would allow him (Lord Brougham) to state what he really did now intend to say. The noble and learned Lord (the Lord Chancellor) had entirely mistaken the Bill, for the provisions objected to had formed a portion of the previous measure. By the Bill of 1833, vivâ voce examinations were directed to be taken in the country under the same circumstances as were provided in the present Bill. The clauses of the present Bill were taken from that Bill of 1833, with some improvements of detail merely. By that Act it appeared that examinations were taken and cases referred into the country which had not been previously inquired into in London at all. His noble and learned Friend had erroneously supposed that by the present

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measure the cases referred to the County Courts would he those into which inquiry had been previously made. Now this was not the case. The first clause, they would observe, provided for sending matter which was not in the Master's office to the Judge of a County Court. Then, again, there was no provision made in the Bill for causes being referred to the Judges of County Courts under certificates from the Masters—a provision of which he trusted that on the whole their Lordships would approve, for the Master must in such instances he fully possessed of the cause, and he would at once he able to judge as to whether or not it ought to be referred. The Chancellor and Vice-Chancellors had by the Bill of 1833 the power of directing these references, except in cases where the causes had begun in a Master's office. The clause of that Bill to which his noble Friend had referred, was entirely confined to causes pending in the Master's Office. He was enabled further to state that his noble and learned Friend, not then in the House, was favourable to the transfer of a great deal of business from the Masters' offices to the Judges of the County Courts. Having often considered the means of relieving suitors in Chancery from expense and delays in the Master's office, he had always been favourable to sending a considerable portion of the business of those Masters' offices to the local jurisdictions. Then, he would ask, what objections were there to intrusting this power to the Chancellor and the Vice-Chancellors?—they surely would exercise on it a sound discretion. He (Lord Brougham) did not sec why any exception could be taken to the examination of witnesses in the County Courts. Many of those witnesses were examined as to mere matters of fact, on which no great difficulty could arise; and the duties connected therewith the County Court Judges were quite as well qualified to discharge as were the Masters in Chancery. His noble and learned Friend had argued, that because these Judges received a salary of only 1,000 l. a year, they could not he supposed competent to the discharge of the duties imposed on them by this Bill. Now they must recollect that Parliament had voted these Judges 1,200 l. a year, and they had cut them down to 1,000 l., and when they had done so, were they to measure the value of these Judges by the amount of salary they now received? His own opinion certainly was that they ought to have larger salaries, and that the
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means of securing adequate ability for the discharge of judicial duties ought not to be withheld from a principle of stinginess. He (Lord Brougham) took it on him to say, that these County Court Judges were men fully adequate to the performance of all the duties which this Bill contemplated. If it were their determination to strike out these clauses, he should decline to press the subject any further.
LORD CRANWORTHfelt that the altered state of our social relations, by reason of the facility of communication, had in the course of the last twenty years made the provisions of this measure less beneficial than they would have been twenty years ago. Still he thought the measure would be a benefit and an improvement on our present system, and he saw nothing objectionable in the clauses under discussion, by which the Chancellor, Vice-Chancellor, or Master of the Rolls (when it should be made appear to them that any accounts or inquiries in any cause might be more effectually taken in the country), would have the power to direct that such accounts or inquiries should be taken by the Judges of the County Courts. Now surely this was an innocuous clause. His noble and learned Friend (the Lord Chancellor) had asked, how could the Judges know that it would he more convenient to take the inquiry into the country? It was true there was some difficulty; and if there was any real ground for doubt, he (Lord Cranworth) admitted the references must he made as heretofore, to the Master in London. Then it had been suggested that the power should he qualified, and only apply to cases in which both parties consented. But he thought the clause was better framed as it, stood, because every one acquainted with the Courts must know that when parties were called on to consent to anything, the counsel on one side or the other are often obliged to withhold that consent on the ground that they have no instructions. It was far better that the hands of the Court should not he tied up, and that in cases in which the Court was satisfied it was desirable, on the showing of one of the parties, it should have the power of so directing a reference to the County Court, though the other party would not give his consent. He quite agreed with his noble and learned Friend (the Lord Chancellor) that it was highly undesirable, and nothing would induce him to give his consent to any measure which should have the effect of trans-

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ferring to the County Courts all the functions now exercised by the Masters in Chancery. But because there were many inquiries of importance, in which it would not be proper to employ a County Court Judge, it did not follow that there were not others of no difficulty, in which they might be usefully employed. Supposing, for instance, it was necessary to inquire who were the next of kin of a deceased tradesman at Penzance or Carlisle. Even now, when such a mat-was in the Master's office, advertisements were circulated through the papers in the locality, calling on the next of kin to come in and state their claims. All was done by directions from London in the local papers; and why—if the Court was satisfied, it could be more cheaply and better done—why not have the power pro hac vice, of requiring that it should be done in the country, and of making the local Judge a Master in Chancery for the purpose of that inquiry? With all deference to his noble and learned Friend (the Lord Chancellor), he could not feel the force of the objections which he had urged against this clause. As far as it went, it was positively beneficial, being a move in the right direction to enable them to see how far legislation might be extended in that very proper direction. He believed, in doing this, they were adopting a course analogous to the practice of the Scotch Courts, where matters were often referred to accountants, not officers of the court at all. It was a course likely to be attended with no disadvantage, but with some advantage; and certainly with the great advantage of determining how far they could proceed further in the same direction.
LORD CAMPBELLwas prepared to support several objections of the noble and learned Lord (the Lord Chancellor) against the arbitration and reconcilement clauses of the Bill; but with respect to his objections to the equitable clauses, he could not concur with him. It had been very good-humouredly said in his absence, that he was a postulant in equity, though he had pledged his irrevocable vows to Common Law, and therefore he should claim to give his plain and honest opinion on all the important clauses of the Bill He did not think the County Court Judges were so incompetent as they had been represented. It had always been contemplated that certain questions in equity should be referred. In the Bill of 1833, and in the Bill of 1846, there were clauses very much resem-
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bling, though not going to the full extent of, the clause under discussion; still the purport of the clauses contemplated a reference of certain matters to the County Courts. He spoke with some confidence, because he had had the benefit of a conference on the subject with his noble Friend Lord Langdale, and Lord Langdale said he many years ago suggested the clause, which was now part of the Bill, and he had always maintained that it was desirable to give a power of this kind for the purpose of referring questions to the County Courts. Seeing, therefore, no reasonable ground for striking the clause out, now that it was introduced, he (Lord Campbell) should support that provision of the Bill.
The LORD CHANCELLORsaid, that there were inquiries which could be managed as proposed by this measure, but these instances did not occur in such numbers as to warrant their present legislation. Very few of such cases had occurred in the experience of his noble and learned Friend the Vice-Chancellor. There were many cases out of which important considerations often arose, which could not be referred to the jurisdiction of the County Court Judges. There were cases of lunatics, of infants, of married women, and various other classes, where it was of great consequence the functions of the Masters in Chancery should not be delegated or transferred to others. Great and important principles would come on for discussion; or disputed facts, or questions, say of the construction of a will, or other matters of difficulty which, in the Equity Courts, would not be considered as fitted for the Master's office. Let his noble and learned Friends consider the causes that would have to be tried of the most difficult nature. There might be many cases such as had been suggested, where the next of kin of a tradesman were required; but these cases were often more difficult to adjust than the claims of the next of kin of peers; for when the next of kin were advertised for, it was not known who they were. Or there might be questions relating to marriage—whether, for example, registration had taken place in an adjoining parish, because the church of the parish in which the parties resided had been pulled down; but he would venture to say such cases did not occur, once in a year. Generally speaking, the cases would, he thought, he likely to be of such a description that these Judges should not be selected to do the business of them,

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and the irregularities in the clauses would cast a great burden upon the Courts; and it should be remembered that these were questions of equity, and not mere matters of account. Inasmuch as these duties were of a very onerous nature—inasmuch as it could not possibly be decided until the case came on before the superior Court whether it could be sent to the County Court or not—he objected to this Clause, but would not divide against his noble and learned Friend. The other Clauses would also require alteration.
After a few words in explanation from Lord Brougham, the Clause was agreed to. Clauses 14 to 21 were severally agreed to.
On Clause 21 being proposed,
The LORD CHANCELLORsaid, that, by this clause, the interrogatories, depositions, pleas, and other papers in the suit, might be forwarded by post. Thus, the person who received these documents from the Commissioner under the authority of the Court, who sealed them up, and was sworn never to part with them until they were opened and delivered to the parties, yet sent them through the Post Office without the slightest precaution being provided.
LORD BROUGHAMwould consider the suggestion.
On Clause 22, "Powers of Judges may be exercised by Clerks of County Courts,"
The LORD CHANCELLORobjected to the clerks of the County Courts being authorised to exercise all the powers given to the Judges, unless the order directing the inquiry should otherwise direct. How was it possible for the Lord Chancellor or Vice-Chancellor, or Master of the Rolls, to exercise any discretion whether the power should be extended to the clerks of the County Courts, without knowing what the matter would turn out to be which they would have to perform?
LORD BROUGHAMsaid, that the acts permitted by the Bill to be done by the clerks were merely ministerial acts, as taking examinations, or interrogatories, and the like; but, on the suggestion of his noble and learned Friend, he had no objection to limit expressly the operation of the clause to cases in which there could be no doubt, and leave out the power of taking vivâ voce evidence.
After some further conversation, Clause 22 was struck out. Clauses 23 to 26 were respectively agreed to.
On Clause 27, "Barristers, whether in-
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structed or not, may appear on behalf of parties,"
LORD CAMPBELLsaid, that a former Act forbade Barristers coming into Court and pleading for parties, unless instructed by an attorney. He did not think that this should be absolutely prohibited; and his own first judgment, upon coming into his present office, and which was agreed with by his brother Judges, was, that a Barrister might plead a cause on circuit, and, under certain other circumstances, without the intervention of an attorney. He saw no reason for placing these Courts in a different position in this respect to the superior Courts, or that a Barrister should be positively prohibited by law from appearing, whatever the circumstances or exigency might be, unless instructed by an attorney. So far as the superior Courts were concerned, he believed that the etiquette, the discipline, and the public opinion of the Bar would be sufficient to prevent the practice of Barristers accepting a brief except through the medium of an attorney; but he doubted whether these would be sufficient to check the adoption of the practice in the County Courts. It was for this reason that a clause expressly forbidding Barristers to appear in any case without the instruction of an attorney was introduced into the original County Court Act. The reason was as strong now as when County Courts were first established. He moved, therefore, that the Clause be struck out.
LORD BROUGHAMsaid, he had objected to the clause in the Act of 1846, which, for the first time, introduced any restriction on the subject; because, as his noble and learned Friend knew, there had been, independently of that provision, no restraint whatever on a Barrister appearing in any Court without instructions from an attorney. His noble and learned Friend said that the etiquette might be trusted; and he agreed with him, as regarded that etiquette which, from a sense of duty, prevented any person from appearing in Court without instructions, that it had a wholesome and salutary effect. But he wished the same etiquette to prevail in the County Courts. Let it be left to the conscience and discretion of the counsel attending the County Courts, as in the other Courts, whether, and when, and in what cases, they should appear without instructions from an attorney.
The LORD CHANCELLORexpressed sonic doubts as to the education and char-

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acter of the race of men who would spring up combining the capacity of attorney and advocate. He agreed with his noble and learned Friend (Lord Campbell), that the etiquette of the superior Courts imposed a salutary check upon the practice referred to; because, though a few cases of abuse had occurred, yet the professional opinion was found quite sufficient to check them; and he was quite sure if such a practitioner went the circuit he would be reduced to dine alone. But he feared the liberty allowed by this clause would go to encourage a few individuals who, even now, departed from the salutary etiquette of the profession, and were to be found lurking about the gaols, making the acquaintance of the turnkeys, or even of the inmates themselves, and haunting the purlieus of the police courts; and he would ask his noble and learned Friend, whether he was prepared to sanction the conduct of such individuals? The County Court Judges had not the means of discountenancing the system which the Judges in our superior Courts had; and, therefore, they required more protection to put down the system, which was so ready to spring up in these Courts, of practitioners bargaining with suitors for remuneration according to the degree of their means, and all those other evils which the lower portion of the profession was so much exposed to. It would certainly be improper to admit in all cases a Barrister to come into Court and plead without the usual instructions; and he would submit to his noble and learned Friend's consideration, whether it was necessary, or whether it would add respectability and standing to these Courts, and tend to protect the public from incompetent practitioners, if the clause were to pass in its present affirmative form, that any Barrister might appear in Court on any proceedings without instructions from an attorney?
LORD CRANWORTHwould give no opinion on the point, whether the clause ought originally to have been inserted in the Bill of 1846; but having been so inserted, he thought evil consequences would ensue from its repeal, and therefore he objected to the present clause, which went to repeal it.
LORD BROUGHAMsaid, that a more frightful picture of a base and abandoned race of profligate practitioners artist never painted than than that which had been sketched by the experienced hand of his noble and learned Friend the Lord Chan-
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cellor. If such a race of men existed as his noble and learned Friend had so graphically described, the retention of the enactment of the Bill of 1846, declaring that they could not practise in a County Court unless instructed by an attorney, would operate as the slightest possible check upon their malpractices; for, suppose a County Court Judge should ask one of these gaol-frequenters whether he were instructed by an attorney, he doubtless would reply at once, "Yes, Sir; I am instructed by two." It was not likely that a Judge would stop the progress of a cause to try the collateral issue thus raised. It certainly appeared to him that gentlemen who associated with the rest of the profession would not be generally of the character described by his noble and learned Friend, or lend themselves to the underhand proceedings of profligate parties; and he believed that the view of his noble and learned Friend would prove not a little exaggerated.
Clause negatived.
On Clause 27, enacting "that if both parties agree, whatever the action or amount of claim, such action may be tried by a County Court," being read,
The LORD CHANCELLORobserved, that by the provisions of this and the following clauses, actions of any kind and of whatever the amount involved, might, if both parties agreed, be tried in the County Courts; and, as it appeared to him, the Judges might decide them, not by any known and recognised rules, but arbitrarily. How was this to go on, even where the Judges were of the greatest authority, except by agreement of the parties? But the parties might be resident in different parts of the country. He doubted very much whether these two clauses would not put the County Court Judges in a state of great embarrassment. The words of Clause 28 were, in enacting that any cases might be tried—
"Whatever be the kind thereof, or whatever the amount of debt or damages claimed, or whatever be the subject matter in dispute, anything in the said 17th section contained, or in the said Act of the 9th and 10th years of Her present Majesty, cap. 95, contained to the contrary notwithstanding, and local as well as other actions may be tried in any county court in which the parties are agreed, and signify such agreement in the memorandum."
Then came the next Clause connected with it, which provided that—
"The parties may agree to any terms on which the action shall be tried, both as to whether with

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or without a jury, whether by a jury of five or of twelve (depositing five or twelve shillings, as they may agree, according to the 71st section of the 9th and 10th Victoria, chapter 95), whether with or without examination of parties, with what delay and notice of trial, with what access to letters, papers, or other documents, before what Judge in case a new trial shall be granted, also touching the execution of the judgment, by what instalments the sum ordered shall be paid, if not to be paid at once, what possession of any land or of any chattels shall be given, and at what time, and under what penalties of fine or attachment, in ease of refusal, and, whether the judgment shall be final or subject to appeal, and, generally, as to all matters touching both trial and execution; and all such terms so agreed upon shall be inserted in the memorandum of agreement; and the trial and execution shall be according to such agreement in all respects; and in all such cases any party dissatisfied with the determination or direction of the court in point of law, or upon the admission or rejection of any evidence, may appeal in the manner laid down by the 14th and 15th sections of the 13th and 14th Victoria, chapter 61."
Surely this went beyond all reasonable bounds, and must lead to the utmost possible confusion, to require any Judges to discharge these manifold duties. He knew not what parties to the proceedings would not be prejudiced by such a provision; and the worst of it was that they would be prejudiced, not by any known rule, but by arbitrary will. The clauses were, in his opinion, decidedly beyond what they ought to be.
LORD BROUGHAMsupposed that his noble and learned Friend knew that such a clause was in the existing Act—that by the parties signing a memorandum of agreement, the County Courts might try any action to any amount, there being a doubt arising from the varying of that clause whether some actions were excepted which had not been excepted by the Act of 1846. But they might try "any amount of damage," and any action involving title to land, whether freehold, copyhold, leasehold, or any matter relating to matters of markets or fairs. But the doubt had arisen as to the construction of the Act of 1846—an objection he believed not to be well founded; therefore he thought he had succeeded in comprehending in this clause the intentions of the original clause, and it had appeared to him that the point ought to be definitively settled. These clauses were framed in conformity with the general scope and object of their legislation, which was to throw open the County Courts as widely as possible with the consent of the parties; the proposed clauses would enable parties to try their own causes at their
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own doors and in their own way, instead of being compelled to incur expense and delay by carrying their suits to a distant tribunal. He could see no objection to the clauses unless it was that his noble and learned Friend looked with dislike upon courts of local jurisdiction.
The LORD CHANCELLORsaid, the noble Lord was mistaken on that point. He did not object to the existing jurisdiction of the County Courts, but he objected to extending it.
LORD BROUGHAMexpressed his conviction that his noble and learned Friend, if in the House last Session, would have objected to the extension of jurisdiction in the County Courts of from 20 l. to 50 l.
LORD BEAUMONTobjected to the clauses in question, on the ground that they enabled parties to take their causes to any Court. Now, the last Act only empowered them, provided both the plaintiff and defendant agreed on the point, to take them to any Court within a district of twenty miles, unless indeed the causes came within the exceptional ones mentioned in the Act. If any doubts had arisen respecting the jurisdiction afforded by the last Act, he was willing they should now be dispelled, but he was disinclined to grant the extensive powers Clauses 27 and 28 conferred.
LORD CAMPBELLobjected to the clauses, thinking that their Lordships ought to conform to the enactment of last Session upon this subject. The power conferred by the existing Act had never been called into operation, and its extension, therefore, appeared to be uncalled for.
LORD CRANWORTHthought it very desirable that local actions should be confined to local jurisdiction.
EARL GREYsaid, the clauses now under consideration would have the effect of preventing a proper distribution of jurisdiction throughout the country. A County Court Judge who had gained a reputation would have his hands full of causes from all parts of the country, while the proper business of his own court would be neglected.
LORD BROUGHAMsaid, that with such an amount of legal and other opposition against him, it would be perfectly hopeless to divide.
Clauses 27 and 28 were then struck out. Clauses 29, 30, and 31 agreed to.
On Clause 32 being read, which provided that on new trials the venue might be changed,
The LORD CHANCELLORsaid, the effect of this clause would be to compel the plaintiff to bring forward all the witnesses again to prove his case, though the defendant might not in the first instance have appeared. Supposing the plaintiff to have received no notice of the intention of the party to defend the action, he might go unprepared with his witnesses, and then the defendant, taking advantage of that want of preparation, might succeed through a clever attorney in defeating a lawful claim.
LORD BROUGHAMsaid, that, supposing the defendant not to have given the proper notice of his intention to defend, information to that effect, if given to the Judge on the day of trial, would, doubtless, be followed by a postponement of the cause.
The LORD CHANCELLORthought that if the plaintiff had not been served with notice of defence, judgment ought to go by default.
LORD CAMPBELLobserved, that in the superior Courts when the defendant failed to appear, judgment went by default, without declaration. He thought it would be a great improvement, when the defendant was informed of the plaintiff's demand, and he admitted it, and served no notice of his intention to defend, if that admission and non-service were taken, pro confesso, as an acknowledgment of the debt.
The clause was postponed, so also was Clause 33. Clause 34 was agreed to.
On Clause 35 being proposed to stand part of the Bill,
LORD BEAUMONTsaid, that if this clause was agreed to, the litigant parties would not be sure of having a court once a month for the trial of their causes, and that unless the Judge held two courts in a month instead of one, speedy justice would not be obtained.
LORD BROUGHAMbelieved the clause would have a salutary effect, and that it would have a much more salutary one if it went further, and confined the attorneys to the courts of 20 l. jurisdiction, and the barristers to the courts of 20 l. jurisdiction and upwards. He had not proposed any such compulsory provision, but he thought the tendency of the clause as it stood would be to confine the bar to the courts of larger jurisdiction, and the attorneys to the courts of smaller jurisdiction. He was averse to mixing up the two branches of the profession. On the contrary, he thought the further asunder they were the better.
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He presumed the Judge would go to the smaller courts once a month, and to the larger courts once in every two months.
The LORD CHANCELLORthought the public would feel satisfied if one day were set apart by the Judge for hearing defended causes, and another day for hearing undefended causes, because, if some such arrangement as this was not made, a defended cause for the recovery perhaps of a few shillings might for hours retard the disposal of scores of undefended causes involving large amounts.
The Committee divided:—Contents 4; Non-contents 14: Majority 10.
Clause struck out.
Clause 36 withdrawn, and Clause 37 agreed to.
On Clause 38 being proposed, which provided that a commission should issue to inquire as to courts of local jurisdiction other than County Courts,
LORD CAMPBELLsaid, he considered the clause wholly unnecessary, and that he viewed its introduction into an Act of Parliament with great apprehension, the more particularly as Palace Courts and other courts of that description might be abolished without it.
LORD BROUGHAMwould not press the clause, and it was accordingly withdrawn, as was also Clause 39, on an objection raised by Lord CRANWORTH.
On Clause 40, allowing Attornies and Solicitors' Clerks to practise in the County Courts,
LORD BROUGHAM, meeting the objections which had been raised in the previous discussion to the privilege which he proposed to concede to attornies and solicitors' clerks to practise in these courts, observed that the object of the clause was chiefly directed to the metropolitan districts, where there were many most respectable solicitors and attornies, who could not possibly, in consequence of the extent of their business, find time to attend personally in the County Courts, but who kept clerks in every way competent to perform the duty. At present clerks were allowed to appear at Judges' Chambers, in the Master's Office, in the Court of Bankruptcy, and in Magistrates' courts; and he could see no objection to their appearing in the courts to which this Bill referred. To prevent their doing so, would be, in many cases, to deprive the suitors of the benefit of the aid of the most respectable members of the profession.
The LORD CHANCELLORrose to object to the clause.
LORD BROUGHAM: If you object, I will withdraw the clause at once.
The LORD CHANCELLOR: I do object.
Clause negatived. Clause 41 struck out.
LORD BROUGHAMsaid, he would not now give their Lordships any trouble regarding the postponed clauses, although he nevertheless retained his opinion, and was well convinced that they would have introduced a great improvement into the County Court jurisdiction. The Courts of Reconcilement, he believed, would be a great step gained in the course of radical improvements in the judicial system of the country. He was fortified in the opinion he entertained in their favour, by the dark picture drawn by the experienced hand of his noble and learned Friend that night, of a certain class of persons who frequented the courts. Anything, therefore, which would have the effect of bringing the parties themselves before the Judges, to the exclusion altogether of these malpractitioners, would be a great good gained, the more to be valued that they had an enormous evil to deal with. The system he proposed prevailed in France, in North Germany, in Switzerland, and in Denmark, and in all, especially Denmark, had been attended with success; and unless human nature were something quite different among our neighbours on the Continent from what it was in this country, the introduction of the system here would be a most important and most beneficial improvement introduced into the courts of law. He would confine himself to stating the results of the experience of the people of France, which had been greater than in countries in the north of Germany, in Switzerland, or even in Denmark. The average number of cases during the years 1847 and 1848, brought each year before the Juge de Paix, who was the Judge of the Court of Reconcilement, was 999,000 and odd, or nearly a million. That was under the improved process since the alteration was introduced by the law of 1838. The parties were hardly ever attended by professional men during the hearing in the court except in great towns; and the result of such hearing was, that of the number he had named 723,000 causes were settled amicably by the advice of the Judge, and 276,000 were not so settled. The cases thus settled and unsettled, included those of small amount
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in which the jurisdiction of the Juge de Paix was final, namely, sums of 1,000 f. (40 l.) and under. The cases brought before the same courts for sums of larger amount were 60,000 a year, and of these one third were settled. In Denmark nine-tenths of the causes were either settled amicably at once by the advice of the Judges of these Courts of Reconcilement, or were settled before the litigation had proceeded beyond a single step. It had been objected that such a system would enable parties who had no intention of coming to an arrangement through these courts to obtain a knowledge of their opponent's case; but our object should not in all cases be the interest of the parties in the suit, but the interest of justice; not to mention that it was a party's own fault if he chose to tell more of his case than was consistent with his own interest. These were the results supplied by the experience of other countries, and he did not know whether the noble and learned Lord would still persist in opposing the clauses.
The LORD CHANCELLOR: Yes.
LORD BROUGHAMthen consented to the first twelve clauses of the Bill, respecting the Courts of Reconcilement, being negatived. But sooner or later this great improvement, though postponed, would, he felt confident, be carried.
Classes 1 to 12 put and negatived.
Report to be received on Thursday next.
House adjourned to Thursday next.