Lords Sitting of 21 March 1851

MINUTES.
PUBLIC BILLS.—2a Commons Enclosure; County Courts further Extension.

COUNTY COURTS FURTHER EXTENSION BILL.
LORD BROUGHAM, in moving the Sec-
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ond Reading of the Bill, wished to state briefly to the House some alterations which he proposed to make in the measure, those alterations being in the nature of additions. In the first place, it was his intention to introduce a declaratory clause for the purpose of removing all doubts as to the object and extent of the voluntary jurisdiction clause in the existing Act. In the second place, he should introduce a clause to provide that, in case of a new trial, the venue should be changed, so that the cause could not be beard again before the County Court Judge who tried it in the first instance, if either party denied the charge. Power would also be given to a Judge of the superior courts to change the venue in an original trial upon due cause shown, and on conditions which the Judge might impose. This latter provision, however, could extend only to causes between 20 l. and 50 l. A clause would be introduced to declare that in all cases in which defendants omitted to give notice of their intention to defend, the cause should be treated as undefended, and only the usual evidence given in undefended causes would be required from the plaintiff. If, however, after having omitted to give such notice, new circumstances should arise, such, for example, as the discovery of new evidence, then the defendant, upon making application to the Court, might have the trial postponed on such terms as tin, learned Judge might think fitting. The next provision which he meant to introduce was more important than any of those to which he had yet adverted. Their Lordships were aware that by a salutary Act of Parliament, passed in 1836, tithe in England and Wales was commuted. The operation of the Act had been nearly universal, and almost all tithe had been converted into rent-charge. The law as it now stood gave the owner of the rent-charge no remedy except by distress. It must not be concealed from their Lordships that to give the County Courts jurisdiction in such cases would be making a material change in the law; for not only was there no remedy at present against the occupier other than the landowner, except by distress, for the recovery of arrears of rent-charge, but by the Act of 1836 it was expressly declared that no personal liability should attach to any party in respect of the arrears. Nevertheless, seeing that it was repugnant to the feelings of those entitled under the rent-charge to have recourse to distress, he had, at the urgent request of many reverend persons, deter-

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mined to give the County Courts the same jurisdiction to the extent of 50 l. in cases of arrears of rent-charge as they had in regard to all other debts. There was a court in this country to which even the practitioners admitted no sane man would have recourse for any sum due to him of less amount than 1,000 l., he meant the Court of Chancery. It had been suggested to him that it was desirable to give the County Courts an equitable jurisdiction to a limited extent; but, on consideration, he would decline taking that course at present, whatever he might do eventually. He deemed it better to make this the subject of a separate Bill. That Bill he hoped goon to introduce. There was one matter connected with the establishment of the new County Courts which should not be overlooked. He alluded to the ancient local courts, some with unlimited and others with more or less limited jurisdiction, as the Tolzey Court of Bristol, the Court of Passage at Liverpool, the Recorder's Court of Manchester, the Court of Salford Hundred; and there were, he believed, in many of the ancient towns and boroughs courts of limited jurisdiction, and in almost all the newly created municipal corporations, courts presided over by Recorders, all of them with fees on a more liberal scale than those allowed in the County Courts. The consequence was, that when there were two courts, one old, and one the new County Court, in the same district, the legal practitioner would take the case into the former, though the plaintiff and defendant might desire to try it in the latter. He would propose to remove the expensive and useless jurisdiction of those ancient courts, and transfer it to the County Courts, with a few exceptions, such as the Borough Court of Manchester, and the Passage Court of Liverpool; but he would not do so at once and without proper inquiry. Whenever the Town Council should petition the Queen in Council for the removal of a local court of this kind, the petition should be referred to the Judicial Committee of the Privy Council, and there should be power given to them to advise the Crown to extinguish those ancient courts, as far as they had a concurrent jurisdiction with the County Courts, by giving the latter exclusive jurisdiction, and thus transferring the jurisdiction of the former to the County Courts. But it might happen that the Town Councils had no mind to part with their old courts, because of certain
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patronage and other matters dear to the municipal mind; and yet it might be Very fit the extinction should take place. This could only be effected by the Legislature upon careful inquiry into all the local circumstances. In order to arrive at the fullest information on these points, a Commission should issue, and present a report on which the Legislature could act. Until that was done, he never would believe the County Court system was in a state approaching perfection. He had framed a clause for compensation, but it was absolutely necessary for Parliament to hold a tight hand over the important matter of compensations to public officers. What did they think of a retiring allowance of 2,000 l. a year for a place all but a sinecure, or of 3,600 l. for a place even technically a sinecure, and that too during the continuance of a young life? Why, there were certain clerks in Chancery who had received some 6,900 l. a year compensation for offices, certainly not sinecures, but the gains of which had been calculated during a short time only, and not during a series of years, so that the officers magnified the profits, in expectation of the compensation being calculated on that short period. He would provide that no officer in the new County Courts should have any claim for compensation, and that no one in the old County Courts should be entitled to it for any office taken after the present Bill passed, nor for any loss of fees arising from alterations in the jurisdiction. The arbitration clauses had been received very favourably through the country. In France, Belgium, and Holland mercantile courts, acting on the principle of arbitration, had been of the greatest service. Those tribunals were constituted entirely of mercantile men. They were appointed by the Government of the different countries in which they were established, out of a list of respectable merchants and traders presented by the general body of merchants. These courts, with few exceptions, exercised exclusive jurisdiction over mercantile causes. They had only one professional member—the clerk, or greffier—who was paid for his services, and who was generally eminent in the legal profession. An appeal lay from them to the Court of Appeal, and then, oil a matter of law or of form, to the Court of Cassation. The mercantile judges were unpaid, and the saving of expense, delay, and anxiety to suitors by such tribunals was inconceivable. He had never beard the smallest doubt expressed by any foreign

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merchant or any foreign lawyer as to the great advantages of those chambers of commerce, and he had the strongest opinion in favour of their introduction here. But he would not make them compulsory, at least in the first instance, nor make them courts of exclusive jurisdiction, but make them voluntary tribunals, to which both parties might go by consent, and have the question settled by merchant judges, if they preferred them to those of the law. It might be objected that these mercantile tribunals, with the Courts of Reconcilement, would have the effect of materially diminishing the business of the learned profession, for which he felt so high a regard, and of adding to the losses which they were said to have sustained from the 50 l. clause of the County Courts Act; but he could not agree in that. It was further mentioned that the interference of the profession was in all cases beneficial; but assuredly it prevented causes being amicably settled. He was informed that in the country parts of France more than half the cases were adjusted by the Courts of Reconcilement: but in the towns, where every man had an attorney at his elbow, it was usual for the latter to stop the arbitration by stating there appeared no matter for reconcilement. Therefore, he greatly rejoiced he had made it part of his Bill that no professional man whatever—barrister or attorney—should go with the parties before the Judge of Reconcilement. He was anxious, however, to take steps which might prevent as much as possible any loss to the profession from the change now in progress, and to cheek its going further than was absolutely necessary, for he should hold it to be deplorable in the extreme if any legislation should lower the character of that body from which the administrators of the law must necessarily be chosen. A clause had been most improperly inserted in the County Courts Bill of 1846, of which he was not aware till lately, enacting for the first time that no barrister should appear in court unless instructed by an attorney; and lately an attempt had been made to follow up this in one of the courts at Westminster; but the Lord Chief Justice of the Queen's Bench showed there was no foundation for such a practice, and that any barrister had a right to appear in any court without being instructed by an attorney. But, at the same time, the learned Judge said it was contrary to professional etiquette; and another learned Judge, on the Northern Circuit, had en-
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forced the rule which the custom of the profession had made. But observe the position of a barrister in the County Courts. The attorneys might practise and run away with the whole of the business; but if this improper restriction were removed, the barrister had a fair chance with the attorney. There would, however, he one inconvenience follow from a barrister practising without instructions from an attorney. He must, in that case, sec and examine his witnesses before the case came into court, or he could not do his duty to his client, and he would thus, in effect, be obliged to do the duty both of barrister and attorney. In order that complete justice might be done between both branches of the legal profession, so that the attorneys might not trench on the province of the barristers, nor the barristers invade that of the attorneys, a suggestion had been made which he thought was worthy of all consideration. It was, that the jurisdiction should be divided, and that two courts should be established, an upper court and a lower. There would, accordingly, he under the proposed measure two separate courts presided over on different days by the same Judge; the first or lower court would take cognisance of causes under 20 l. and in those courts attorneys would practise as advocates; the second or higher court would take cognisance of all causes above 20 l. and not exceeding 50 l., where barristers only would after a little while practise as advocates. It was expected that by this arrangement a considerable saving of expense would be effected, as well as a proper separation of the barrister's duties from the attorney's, inasmuch as its practical effect would be to withdraw the barristers from the courts of smaller jurisdiction, and the attorneys from those of the higher. With respect, to the selection which had been made of persons to preside as Judges over the County Courts, he was happy to know that some very learned, able, and judicious individuals had been found willing to fill that important office. It was of primary importance that the persons so selected should be men of great intelligence and of the highest integrity. The present Judges of the County Courts were men of that description, and nothing could be more satisfactory than the way in which they discharged their duties. He could not avoid saying, however, that the principle of false economy which had been, in the first instance observed in the appointing and procuring of Judges, was not such as to

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make it a matter of certainty that the Judges should be men of the highest qualifications. The miserable economy of underpaying the Judges selected, and of grudging compensation to those who formerly presided in the abolished courts—a paltry economy whereby only some few thousands a year were saved to the country, had necessarily restricted the selection of his noble and learned Friend the late Lord Chancellor. His noble and learned Friend had no choice but to fall back upon the Judges of the existing courts, and it was greatly to the honour of that class of gentlemen that so many men of ability and worth should have been found amongst them. If, however, any imperfect appointments had been made, it was owing to that false economy, that most extravagant system. Extravagant he called it, for there could be no greater extravagance than to refuse to pay a good price for good services. Another abuse which he thought could not be too much deprecated, was, that of throwing upon the suitors the expense of erecting the courts. Such a proceeding was at variance with every consideration of justice and of common sense. Nothing could be more outrageous than to compel a poor man to pay for the erection of the building to which he resorted to obtain justice. It was the first duty of the Government to provide him with legal protection, in return for that allegiance which they exacted from him; and that he should be taxed for such protection unless in the same proportion in which all the community is taxed, was most unfair and most irrational. Another evil in the system as now established was the practice of paying professional men according to the amount of the debt in dispute. This was most unreasonable and absurd, for the trouble which a professional man might have in conducting a case, did not in any sense depend upon the amount of the debt; on the contrary, it was quite possible that he might have more trouble about a case which involved 20 l. than about one which involved 200 l. An emendation which he proposed to introduce into the present system was, that the Judges of the superior courts should have the power of framing tables of costs from time to time. Unlike the members of any other profession, those who dealt in law as a business were under great restrictions and control; and it was his belief that, if clients knew the peculiar position in which men of the legal profession were placed, it would be better both for them and for the profession itself.
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No client was obliged to pay his attorney a single farthing of his bill of costs until that bill had been taxed by an officer appointed by the court in which the action was brought. In bringing forward this Bill, he had followed the same rule which had guided him in all the other measures he had at any time introduced into Parliament—namely, that of proceeding with the changes he thought it right to propose as gradually as possible. To go slowly to work was to go surely. His aim was never to shut out the hope of grafting new improvements upon those which had already been found to be for the public benefit; at the same time taking care to make those improvements in such a manner as to give an opportunity for their being fairly tried; so that if experience should show that any false steps had been taken, they might be retraced not only without any injury, but with the greatest benefit to the community. He would now move that the Bill be read a second time.
The LORD CHANCELLORwas understood to say that he did not understand it was the desire of his noble and learned Friend to invite a lengthened discussion on the Bill in its present stage. Several of the objections which had been pointed out by his noble and learned Friend to the existing law, were deserving of consideration on a future day. He entirely concurred with his noble and learned Friend as to the great learning and ability which had been displayed by the Judges of the County Courts. With respect to that portion of the measure which proposed to unite, as it were, the two functions of attorney and barrister in one and the same individual, he confessed he entertained considerable doubts as to the wisdom of such an alteration of the present system. Many American gentlemen with whom he had conversed had stated that they found a great advantage in the fact of the attorneys of this country intervening between the client and the counsel. Attorneys and solicitors, although well versed in the practical operation of the law, were not on that account the men best calculated to advocate a cause before a Judge. Lloyd's Committee was composed of merchants, underwriters, and men who had risen to eminence by means of their great commercial experience, and among whom were to be found men of education of the very first class; and yet he did not apprehend that their Lordships would consider the Committee at Lloyd's a sufficient tribunal for the decision of commercial questions; or that such

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questions would be better decided by commercial men than by courts of justice. With regard to arbitration, he thought the proposal of his noble and learned Friend on that subject was quite superfluous, the system of arbitration being already so well known and understood in this country. But on this and other points he would wait and see in what manner his noble and learned Friend, when in Committee, proposed to legislate. There were, however, some parts of the Bill which seemed to him to be of great advantage, and which it would give him much pleasure to support. There were some clauses which he should take the liberty of proposing, not so much with a view to alter as to extend the measure of his noble and learned Friend. He would not enter further into the matter at present, but he was anxious to protect himself from its being supposed that his consenting to the second reading of the Bill was evidence of acquiescence on his part in all it; provisions, or of anything more than a wish to have the Bill put into such a shape as to admit of its being more satisfactorily discussed at a future stage.
LORD BROUGHAMwas understood to say, in explanation, that, so far from its being his object to combine the attorney and the barrister in one and the same person, his wish and desire was to keep them quite distinct from each other.
LORD CRANWORTHsaid, that the explanation just made by his noble and learned Friend suggested to him the extreme importance that their Lordships should not commit themselves until they knew the details of the Bill, for he had understood his noble and learned Friend just in the same manner as his noble and learned Friend on the woolsack had done, and thought that his noble and learned Friend meant as a part of his system to unite the attorney and the advocate in one and the same person. If that plan were adopted, he was sure of this, that the barrister would make a particularly bad attorney, and that the attorney would make a very bad advocate. At the same time, in actions for small sums it was desirable that the costs should be kept down, though it was impossible to say that there should not be two practitioners employed. It was, in fact, a choice of evils. He concurred with the Lord Chancellor that many of the provisions of the Bill would be eminently useful; but he could not bring himself to believe that, with the habits of the people of this country, the Courts of Reconcilement would have any operation at
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all, or at least for good. If a tailor summoned his customer before the judge of the; Court of Reconcilement for 15 l. for clothes, all that the judge could say was—" If you have had the goods, you must pay for them." If it required a week's notice for appearing in these Courts of Reconcilement before adopting any other course, it was only giving a premium for delay. But if any rather difficult question arose, and a, party wished to learn what were his legal rights, then there would he provided for him a judge to whom he might go without any attorney. Why, this would multiply the business of these judges almost ad infinitum, because they would not have the case regularly stated by an attorney and then laid before a barrister to advise upon it; but the parties would themselves come before the judge, and would most likely state all sorts of irrelevant matter, from which the judge would have to extract the kernel. This really seemed to him to be establishing a separate corps of consulting barristers to be paid by the country, in order to give advice in the room of those from whom parties now obtained it by another mode of proceeding. But he would keep his mind perfectly open to receive any information or explanation which his noble and learned Friend might have to make on this and other points connected with the Bill.
LORD ABINGERobserved, that the County Courts were, in effect, Courts of Reconcilement already; for, from the statement of his noble and learned Friend (Lord Brougham), it appeared that the great majority of cases were disposed of immediately after the issuing of the first process.
LORD BROUGHAM: If a great mass of business came into the County Courts, that would be the best possible test of judicial fitness on the part of the Judges.
On Question, Resolved in the Affirmative; Bill read 2° accordingly.
House adjourned to Monday next.