Lords Sitting of 16 June 1851

MINUTES.
PUBLIC BILLS.—1a Common Lodging Houses; British White Herring Fishery.
Reported.—Highways (South Wales).
3a Public Houses (Scotland).

COURT OF CHANCERY.
LORD BROUGHAM, in presenting a Petition from William Sharp, of Liverpool, merchant, for the adoption of measures for expediting the hearing of the present arrear of causes in the Lord Chancellor's Court, said, he wished to call their Lordships' attention, and particularly the attention of his noble and learned Friend on the woolsack, and his other noble and learned Friends in the House, to a subject which he was sure was now occupying the attention of all of them—he meant the necessary, the absolutely necessary, and no longer to be safely delayed, improvement of the different tribunals in this country; and especially the improvement of the highest tribunal—the Court of Chancery. He highly approved, as far
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as it went, of the proposition which he found had been made elsewhere, for increasing the judicial force of that Court. So far as he had had an opportunity of examining the proposed details of the measure, they met with his approbation, though, certainly, he, for one, was by no means prepared to say that the measure went far enough. With respect to that, he hoped, both the noble and learned Lord on the woolsack, and his noble Friend elsewhere, would act in the spirit of an expression which was used by his noble Friend on a former most memorable occasion, now more than twenty years ago, when he had propounded that great change in the constitution of this country—at least as administered in modern times—the Reform Bill of 1831; when he had gone through a large portion of that important measure's provisions, his noble Friend was reported then to have said, "But we do not mean to stop hero." The promise of those words—most ominous to some, most auspicious to others—was certainly fulfilled by the importance of the remaining provisions which he then brought forward. He understood that his noble Friend on the late occasion, though he did not use these precise words, yet in substance and effect gave the friends of law amendment the cheering hope that he did not mean to stop here, but intended to take a step further; and he (Lord Brougham) hoped and trusted that step would be in the right direction. The improvement of the structure of the Court of Chancery was, no doubt, of infinite importance. But, if he might use the language of physiologists, he would say that it was not sufficient that there should be a structural amendment; there ought also to be a functional amendment, an improvement in its jurisdiction. It was not sufficient to alter the structure of the Court; they must also improve its functions, by altering the procedure in the business which was carried on before it; and the case which he was about to state to their Lordships afforded an instance singularly well calculated to show how necessary it was that one of the most important parts of those functions should be changed and improved. He alluded to the course of referring from the Court matters to be inquired into in the Master's Office; he would begin by stating the case as an example how matters there went on; and as he had given no notice of Motion, and as he meant to conclude by presenting a petition from the party aggrieved, he would consider

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himself as relieved from the necessity of making any further observations than merely to state the facts of the case, and then commend the subject to the best attention of his noble and learned Friend on the woolsack, and his other noble and learned Friends, as well as of the Government. The party from whom the petition proceeded had become in 1840 the purchaser of a share in a vessel. Afterwards a dispute arose between him and others, his co-shareholders, and he filed a bill in the Court of Chancery, for the purpose of establishing his title to a share in the vessel. It was heard before one of the late Vice-Chancellors on the 7th March, 1842, and his Honour directed certain inquiries to be made, and accounts to be taken by the Master. The Master made his report in May, 1845; exceptions were taken by both parties; those exceptions were heard before the Vice-Chancellor in November, 1845, when he allowed some and disallowed others, and then referred the case back to the Master—the second reference to the Master. The Master, on the question of this reference, made further inquiries, and a further report; this further report, being the second, was made in July, 1846. The case came again to he heard for the third time before his Honour in March, 1847, and he thereupon referred it back again to the Master for further inquiry, being the third reference. In Juno, 1847, the petitioner caused an appeal to he presented against the orders of the Vice-Chancellor; and this appeal was heard before the Lord Chancellor, who, in April, 1848, referred it back again to the Master, being the fourth reference, to inquire and state to the Court what was the value of the ship, which had never been done before, though it was purchased in 1840, and the suit commenced soon after. Then, in August, 1849, the Master again reported, under the order of the Lord Chancellor. Thereupon exceptions were filed to the report, and these exceptions were preferred before the Vice-Chancellor, and his Honour, by an order dated in May, 1850—the suit having lasted nearly ten years—directed an action to be brought for the purpose of trying what was the value of the ship in 1840. So that all those references to the Master—all these orders to inquire given to the office—all the reports on the results of the Master's inquiries—all ended in the Court directing that there should be no benefit resulting
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from all these inquries, but that the case should go before a jury to try in 1850 what was the value of a share in the ship in 1840. But this did not end the matter. An appeal was taken against the order. It was not allowed to go to trial. One of the parties was dissatisfied with this decision: he would have no issue. That appeal now stood for hearing before his noble and learned Friend on the woolsack. When the appeal was entered it was 69 down on the paper—that was seven or eight months ago. It had now advanced, he could not say very high, but it had advanced some 18 or 20 up the paper, and now stood between 40 and 50 on the list; and the calculation of the party was that in a year and a half or two years the decision of his noble and learned Friend, if he should so long live, would be given; and then he would say whether the issue which had been directed, after eight or ten years of litigation, should be tried, or whether it should be for the fifth time referred back to the Master. Now, on this statement of facts, which he had made to their Lordships from the petition which he held in his hand, he had only one observation to make—he did earnestly hope that they would find it possible so to now arrange the proceedings of the Court of Chancery as that the Judges of that Court might work out their own decrees, and not send everything to be inquired into by the Masters, a course from which these incalculable evils and delays arose, and arose inevitably. In the first place, the Judge who decided the case, or at least a part of it, so far as to direct inquiry, sent it to another, who must hear the whole over again; next, the Master's opinion was appealed from to the Judge, who might have himself examined the matter and decided; but, thirdly, the appeal was from the Master, who had seen the witnesses, to the Judge, who had not seen them. Here was a most serious evil. The Master, who examined the witnesses viva voce—the Master, who saw the witnesses, and who formed his opinion from seeing them, as well as from hearing their evidence—he made his report. To whom? To the Vice-Chancellor, or the Master of the Rolls, or the Lord Chancellor, who had to decide upon the case without seeing the witnesses at all. A worse course of proceeding, he believed, was never invented by mortal man—than that one Judge should see the witnesses and examine them, and that another Judge (on appeal) should decide the

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case, which Judge on appeal never saw one of the witnesses. His noble Friend the President of the Council (the Marquess of Lansdowne) knew very well that the Judges there, in deciding upon colonial cases, if the Court below had examined the witnesses, hardly ever altered their judgments on a matter of fact; but in cases where the evidence, as in the civil law courts, was taken in writing and transmitted to the Privy Council, so that, in fact, the Judges of Appeal knew as much of the matter as the Court below, and they used a much larger discretion. Now, the Master in Chancery heard the witnesses in a case, and came to the conclusion, on which he based his report upon sight of their gestures, countenance, and whole demeanour, while under examination. The Master made his report, and the Judge who had not heard or seen the witnesses, was called upon to form an opinion whether or not that report exhibited a sound judgment. But that was not the only consequence of this mode of proceeding. He would give one instance, of which it had been his lot to know something. A bill was filed—it came before the Court; the question related to the construction of a will; the construction was doubtful; it was referred to the Master in the first instance, before any decision was given on the construction, to ascertain who were the next of kin. Two and a half years elapsed in an elaborate, tedious, and expensive inquiry before the Master, to ascertain who were the next of kin. And then the case came before the Court, and the Court, proceeding to examine the question, put a construction upon the will which made it absolutely of no consequence whatever who were the next of kin, because by the construction everything went to the legatee, and not a farthing to the next of kin. So that the two and a half years of delay and expense were absolutely thrown away, the result of that inquiry proving to be totally beside the question. It might be said that this was a rare instance. He would not say that such cases happened every day, but he might certainly affirm that something of the same sort happened nearly every day. In saying this, he wished to guard himself against the supposition that he threw the slightest blame upon any branch of the Court. On the contrary, he had repeatedly expressed his respect and admiration, and as one of the community he might add the gratitude, which he felt for the labours of the Judges, espe-
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cially during the last twelve or fifteen months; and if he were to name one Judge who more than another had distinguished himself by his useful course of service and ably applied labour, it was his right hon. and learned Friend Vice-Chancellor Knight Bruce. The presence of his noble and learned Friend opposite (Lord Cranworth) closed his lips with respect to the branch of the Court over which he presided; and the Master of the Rolls and Vice-Chancellor Turner had been but a short time in office; but of the labours, the useful and ably-conducted labours, of Vice-Chancellor Knight Bruce, upon whom, from accidental circumstances, there had fallen, especially last year, a great load of extra work, it was impossible for any person to have a higher estimate than he had. But he felt it his duty to state the defects in the system; he hoped those defects would be removed, and in that hope he concluded by presenting the petition.
Petition ordered to lie on the table.

REPRESENTATIVE PEERAGE OF SCOTLAND.
The EARL OF EGLINTOUNcomplained that, although a vacancy had occurred about a month ago in the representative Peerage of Scotland, owing to the death of a noble Lord who had enjoyed the honour of being one of the representatives of the Peerage of that country, no Royal Proclamation had yet been issued convening the Scotch Peers to elect his successor. Last Session, a noble Friend of his had brought a similar case before the House, when six months were allowed to elapse before the Royal Proclamation was issued. On that occasion it was stated that there was no certain period fixed within which the election was to take place, or within which notice was to be given to the Government that a vacancy had occurred. It was likewise stated that care should be taken that such delay should not occur in future. He thought that it was the duty of Government, in case there was no form at present by which notice could be given them of the death of a representative Peer, to frame such a notice forthwith.
The MARQUESS OF LANSDOWNEwas understood to say that no unnecessary delay would take place in issuing the Royal Proclamation, and that the delay which had occurred was unavoidable.
After a few words from the Earls of EGLINTOUN and FITZWILLIAM,
LORD REDESDALEexpressed an opinion that legislation on this subject was necessary, and that a shorter time should be required for the filling up of any vacancy in the Scotch Representative Peerage.

PUBLIC HOUSES (SCOTLAND) BILL.
Order of the Day for the Third Reading read. Moved, that the Bill be now read 3a.
The EARL of MINTOobjected to the Bill, on the ground that it proposed to supersede the Court of Session as a court of appeal in all matters relating to public-houses, and to substitute for that court a small body of justices of the peace appointed as a select committee to adjudicate on these questions. He appealed to noble and learned Lords in the House whether this was consistent with the ancient jurisprudence of the country. For his part, he believed it would give rise to more abuses than it was intended to cure, and he would, therefore, move that the Bill be read a third time that day six months.
The DUKE of ARGYLLthought this Bill would effect an important improvement in the existing law. He believed it was by no means an uncommon case under the present system that justices were assembled at quarter-sessions who knew nothing of the merits of the cases that were appealed to them, but who allowed themselves to be used for the purpose of reversing a decision that had been carefully examined by the Court before. In order to remedy the grievances complained of, it was proposed that the justices should act by a select committee of their own. He held that such a committee would act with greater caution, and far greater responsibility, than if there were a meeting of all the justices. The noble Lord objected that the selection of the committee would become an electioneering matter. But it was not likely such a system could be carried to any great extent. The committee would not consist of more than ten members, and if any favour or gross partiality were shown by it for party reasons or purposes, or through personal favouritism, public opinion would remedy such a proceeding. In so far as it was an alteration of the present law, it was an alteration for the better. It had been said that the Bill had arisen out of a distrust of the justices of the peace; but the clause to which that objection peculiarly applied had been actually framed by the justices themselves,
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and met with their full concurrence. He trusted that the House would not reject the Bill, which was a great improvement upon the present state of the law. In his opinion, by such a course they would inflict a serious calamity on the people of Scotland.
LORD KINNAIRDbore out the assertion that the Bill had been framed with the full concurrence of the justices of the peace. The Bill procured, what had been so much desired, a limited responsibility.
The EARL of EGLINTOUNsupported the Bill, which was unanimously demanded in Scotland. It might not do enormous good, but still it was a step in the right direction.
On Question, that ("now") stand part of the Motion; Resolved in the Affirmative. Bill read 3a accordingly; Amendment made; Bill passed, and sent to the Commons.
House adjourned till To-morrow.