COURTS OF COMMON LAW (IRELAND) BILL. (Hansard, 26 July 1853)

LORD BROUGHAM

^* My Lords, in moving the second reading of this Bill, I have the satisfaction of finding, that it has been prepared with great care, by men of ample learning; intimately acquainted with the practice of the law, especially in Ireland to which it relates; and of competent skill in the framing of statutory provisions. 796 It was introduced into the other House by my learned Friend, Mr. Whiteside, late Solicitor General of the sister kingdom, who explained and supported it in a statement eminently powerful, as it was perfectly luminous—a statement received with universal applause, and worthy in every respect of his high reputation. Introduced at the beginning of the Session, it has undergone repeated discussion in the course of the intervening period, and although only passed within the last ten days, it has gone through all its stages with an almost general assent.

It has been submitted to the heads of the law in Ireland, and been approved by the most distinguished members of the profession there, both on the bench and at the bar. I will not affirm that all the details have received this approval; but its general scope, and its main provisions, I feel justified in repeating, are sanctioned by the high authority I have referred to.

Unconnected with the sister kingdom, I have been asked to take charge of this Bill, from the circumstance being well known, that my opinions go entirely along with its provisions. It is now a quarter of century since I brought before the other House of Parliament a statement of the various anomalies, defects, and abuses in our law, but more especially in our judicial system; and I had occasion, therefore, in trying that system by the test of its agreement with principle, to examine the rules which ought to preside over its structure, and to govern its procedure. A very large proportion of the defects then denounced, have since been removed in this country, while some of the most glaring continue still the opprobrium of our jurisprudence. But it gives me unalloyed gratification to find, from the Bill to which I now solicit your attention, that all the principles laid down on that occasion, have been fully considered by its learned authors; that hardly one has been overlooked by them in framing the measure; and that by far the greater number of the proposals made, have been embodied in its provisions. But I will go further and express my admiration of the Judicial reforms actually effected in Ireland of late years. We may well envy as well as applaud the sister kingdom, when we look to the vast progress which she has made in the constitution of her Courts; in some improvements going before us by half a century; adopting others, which we ourselves have not yet made, to the incalculable benefit of 797 our fellow subjects there. Thus the Civil Bill process has given them the great advantage of local courts for upwards of half a century. The Quarter-Session jurisdiction has had, during that period, the valuable aid of the Assistant Barrister, always chosen as Chairman, while in no instance have our justices availed themselves of the County Court Judge in this manner. For the last three years, a rational and effectual course has been taken for equalising the business in the superior courts, and there is no longer in Dublin the complaint so often and so justly made here—that one Court in Westminster Hall may have little to do, while another is overloaded. The suits are sent to all the three Irish Courts by rotation, in five and twenties, since the 13th and 14th of the Queen. But there is a natural anxiety further to amend the procedure, to adopt the improvements introduced here by the Act of the last Session, and to add others which are of greater value than those.

The Bill, then, which I am now to move, consists of two branches. It applies to Ireland the provisions of that Act, a hundred and forty odd clauses, having this object; its remaining clauses carry those provisions a great deal further, adopting some of the most important of the changes recommended by the second report of the Commissioners—a document which it is impossible to praise too highly for its enlightened, and at the same time judicious, views. But this Bill, in some material particulars, is in advance of the report; and I must at once distinctly affirm, that the steps which it proposes to take are both perfectly safe, and most important amendments of the law. As must ever happen in this course of legislation, we shall meet with resistance from two opposite classes of objectors, one dissatisfied with us for not going far enough, the other alarmed, lest, going so far, we should here after he obliged to go farther than is safe. But I well remember the answer made to this last and very prevalent objection, by one who was no friend of innovation—no rash reformer—no speculative dealer in changes, my lamented friend Sir W. Follett—one among the rare instances of Parliamentary all but equalling professional success. A measure which he supported was assailed with the cry, "You will not be allowed to stop here." "Wait," he replied, "till they attempt to push us on. Is the thing right to be done? That is the question now. If right, do it; and 798 resist when they would have you do what is wrong!" This was, I believe, among the last occasions on which his persuasive voice was heard. Soon after, with his sorrowing friends of the Senate and of the Bar, I followed his remains to a premature grave:—Cujus corpus a me crematum est, quod contra decuit ab illo meum.

In all that regards Procedure, the objects to be ever kept in view, are, aiding well-grounded claims, discouraging unjust ones, and expediting all litigation:—in short, throwing open the Courts to suits which ought to be brought thither; closing the door to such as ought not; and quickening the decision of all. The provisions of the Bill are framed with a due regard to these incontrovertible maxims, although I am far from asserting that there may not remain further improvements to make procedure in all respects accord with them. In order to sift the cases, as it were, and apply these principles, there is nothing more important than encouraging compromise, or speedy termination of all controversy, by the permission to pay money into Court, or tender amends. This, which ought to be favoured by all means, is, on the contrary, by no means a favourite of the law. Nothing can well be conceived more absurd than the old rules which governed this matter, capricious in some respects, self-repugnant in others. The professed principle was, that any liquidated sum could be paid into Court, and yet payment was not allowed on a contract to deliver goods at a fixed price, nor in an action of debt for a fine in a Manor Court, nor in trover for goods certain; nay, in trover, even producing the goods in Court was not permitted, although the action nominally for their value, or rather for the tort of converting, the value being the rule for estimating the damages, was in reality brought to obtain the goods themselves. These absurdities and gross inconsistencies, under the disguise of excessive refinements upon a principle, are now done away, but still there is no power to pay in cases of tort, which, however, are exactly those where payment should most be favoured, as they are those where feelings are most excited. Here I have the misfortune of differing with the learned Commissioners. In the cases to which they refer, as giving more satisfaction by trial in Court, that trial may still be had though the money be tendered, because the plaintiff may refuse; and as for the chance of a wealthy defendant paying to 799 prevent expense, he has the very same opportunity at present of buying off the plaintiff; he may agree to a verdict. The Bill now before us most justly provides, that in all cases whatever, there shall be the power of paying into Court. It goes as far as I had gone in the evidence and procedure Bill; only requiring the leave of the Court in cases of slander and seduction. The tendency of the power thus extended to discourage needless actions, and also to discourage vexatious defences, is manifest. I could have wished that a further step had been taken in the same direction, by improving the law of Arbitration. The provision in the English Act of 1833, making submissions irrevocable, was adopted in Ireland some years ago. But I wish they had been in advance of us in further preventing litigation by reference. I hope, in the course of a few days, to lay a Bill before your Lordships, having this important object in view; and that its provisions, if adopted in England, will be added to the Irish Bill, I can have no manner of doubt.

Suppose now that no compromise between the parties has taken place, and the suit must proceed, the first matter dealt with in this Bill is the compelling an appearance by providing a substitute where personal service cannot be had. Strictly speaking, this should have preceded our consideration of paying into Court, as that assumes an appearance; but substantially we have been treating of discouraging vexatious proceedings generally. Now, nothing can be more clumsy than the process of outlawry to compel an appearance. If the party has no tangible property, nothing whatever is effected: if he has, his adversary must resort to the Exchequer for his satisfaction; and then it may well be that the defendant is despoiled of his property in his absence on the other side of the globe, and without any intimation of the proceeding, either to himself or his connexions. Of late years a material improvement has been made in this process; the Common Law Courts adopting the Chancery procedure; but there is still a great imperfection. Application to the Court, or to a Judge at Chambers, must be made, for leave to substitute the constructive to the actual service; and nothing can be more prejudicial to the interest of parties than these numberless applications. Indeed, by the late Act, nine or ten attendances at Chambers are sometimes required, where one or two should suffice. 800 It is one of the greatest defects of that Act. The Bill which I am now moving, steers clear of this fault, and in respect of appearance, wisely proceeds upon the plan which has been found to answer in the Civil Bill Court, and which does not require application for leave.

The defendant having now appeared, we are to consider the statements of the parties for bringing before the Court their respective cases: in other words, the pleadings. And, first, it is proposed that all these statements should be verified by the oath or affirmation of the party making them. I am aware that this has not the sanction of the learned Commissioners; a thing more to be regretted than to be easily comprehended. The tendency of the verification will be most salutary, both in preventing unfounded claims, and in checking groundless defences. The objection that sometimes law and fact are so much blended as to deter scrupulous persons from verifying, is really of no avail in the argument, since the matter of fact alone would be sworn to. Then observe how the law now stands. All pleas in abatement must be upon oath, and every one is aware how the requiring this at once stopt a vast proportion of the vexatious pleadings formerly used for the sake of mere delay and of increasing expense. Again, in all Chancery suits, the defendant's statement is on oath, but, most absurdly, not the plaintiff's—so that a Cross Bill is required to make him verify. But in the County Courts at all times, and since 1851 in all Courts, it may be said that parties plead upon oath, because in the great majority of cases both are examined. Incalculable has indeed been the advantage of this change in the law; but I am clearly of opinion that it requires an addition—the Court should in every case have the discretionary authority to call for the parties; else, they in some cases may, the one from unwillingness to undergo cross-examination, the other from dread of putting his adversary in the witness-box, be kept back; whereas the Judge, only desirous to get at the truth, regardless of who may be injured by it, would examine both parties where the purposes of the inquiry appeared to demand it, Nor is it any answer to this proposition, that the party whom the Court wished to examine might keep out of the way. In the law which I am contemplating, provision should be made for preventing the absence of a party without reasonable cause; and who- 801 ever was not forthcoming, would always, without any such provision, expose himself to the observation that he kept away when called upon. I am now, however, upon the question of verification, and for the reasons which I have assigned, I entirely approve of this enactment in the Bill, conceiving that it rests upon the same principle with the other cases in which the party's oath is required.

The pleadings then thus verified, in what shall they consist? Here I must avow my entire approval of the Bill. It proceeds upon the broad principle, always the guide of those who would amend procedure, nay, who would amend the law generally, the principle exemplified in almost all the measures propounded by me, from the Libel Bill of 1816 down to the present day, and the greater part of which have been made law—the substitution of natural for technical procedure. This involves at once the abolition of forms of action; and surely nothing can be more glaringly absurd than the retaining of these, and of the pleadings consequent upon them. The object of all pleading is to let the parties know distinctly what they come to meet, and to let the Court know what their contention is—what they come prepared to maintain or to prove. Then see how little the forms of action tend to give this distinct information. Why, I will remind those who are lawyers among your Lordships, and inform such as are not, of what in 1828 I showed in the Commons, that the self-same form of action and the self-same words in the declaration, the plaintiff's statement of his case, may apply to at the least seven entirely different things—money paid to one person for another's use—money received on a consideration that fails, and the failure may be in a variety of ways, but the form of action and the description in the statement are the very same in all—money paid under mistake in point of fact—money paid to a stakeholder in consideration of an illegal contract with another person—money paid to a revenue officer for releasing goods illegally detained—to try the right in an office, instead of trying by an assize—to try the liability of the landlord for rates levied on his tenant—and in other forms of action, as trover, it is even worse; a chattel being in the possession of another than the rightful owner, may be so simply by his finding it—or he may pretend title to it—or it may have been deposited with him—or he may stop it because the price was not paid—or it may have been sold after the original 802 owner's bankruptcy, and the assignees seek to recover it—or it may be held by the assignees, and the bankrupt disputes his bankruptcy—or it may have been unlawfully taken in execution, and that process is impeached on one of many different grounds of fraud; or it may have been misdelivered by a warehouseman or carrier. So the same words in a plea may cover as many different defences as the words in a declaration cover causes of action. The Bill now before us sweeps away all this useless and worse than useless lumber which keeps the desired information from both parties and the Court; it requires the very claim with its grounds to be plainly stated; the very answer with its grounds to be plainly given. It likewise abrogates that rule which at law, though not in equity, prevails, contrary to all natural reason, that no one shall deny the relevancy of his adversary's statement without admitting its truth; giving power both to traverse and demur. It further abrogates the generally unreasonable rule against replying, or rejoining several matters, giving power to plead as many pleas in each stage as the parties can verify. The great benefit of this change I need hardly dwell upon, in the death blow which is thus given to so much confusion, uncertainty, useless subtilty, worse than useless chicanery, all at the expense of time and labour to the Court, delay, vexation, and expense to the suitor; but it gives me no little satisfaction to think that here the provisions of the Bill have the sanction of the learned Commissioners. For although the English Act of last year did not abolish the forms of action, it left them little more than a nominal existence, when the 41st section distinctly allowed different causes of action, however various, except only replevin and ejectment, to be included in one. Indeed the Commissioners had reported in favour of an entire abolition, and had originally so framed the Bill, which your Lordships altered, conceiving that as drawn it would not work.

Respecting one provision of the present Bill under the head of pleading, I have considerable doubts. The summons or writ, and plaint or declaration, are proposed to be one, and so the appearance and defence or plea, are to-be one—that is, there must only be one proceeding both by the plaintiff and defendant. I rather agree with the Commissioners, who considered that this junction would have the effect of making a plaint, or plea necessary in cases where the writ or summons, and the appearance might 803 suffice. This, however, is fit to be considered in the Committee, and I do not profess to have formed a very confident opinion upon the subject.

The trial is now to proceed, and here the Bill introduces that most salutary change which I submitted to your Lordships in the Evidence and Procedure Bill, and which afterwards had the entire concurrence of the Commissioners, though my noble and learned Friends in this House opposed it—I mean the enabling parties in all cases to try by the judge without a jury, provided both consent. The only doubt which I have on this important head, is whether, at least in the beginning, we should not confine this option to cases of contract and quasi contract. That ultimately the option should be universal, I do not doubt; but possibly there are reasons why in the first instance cases of tort should be excluded.

Upon that which next comes to be considered, the Evidence, there are several useful improvements in the Bill. One on which I set great value is, the general power given to compel the production of documents, which by an error in our English Act has been found to be cramped by the requiring knowledge of possession to be proved. Here one could have wished that the salutary rule in the Scotch Courts had been adopted, the want of which we so often experience in ours—the requiring previous notice to be given of all documents before they can be used in evidence, unless their recent discovery be shown. No one can have long practised at Nisi Prius without being aware how such a rule would tend to prevent vexatious suits, pertinacious defences, and professional manœuvres. An example may suffice of the latter. The plaintiff had proved his case; the defendant's counsel had not put a single question in cross-examination. Then said the Judge, "Of course you have no case, and the plaintiff must have a verdict." No, said I, it must be the defendant who has the verdict; and I produced the receipt, which his attorney had thought fit to keep back, which must have kept the cause out of court by the Scotch rule, and which would also have prevented the professional gentleman from pocketing his costs. The dishonesty of the plaintiff, if he did not act from entire mistake, certainly deprived him of all right to complain.

Connected with this head I could also have wished that in the most important part of the Bill, the granting equitable procedure to Common Law Courts, a power of dis- 804 covery had been more extensively given, in order to preclude the necessity of parties going from one Court to another, or from one action to another for their remedy. But it contains other most salutary provisions which have this object in view. Thus, nothing can be more absurd than only giving the plaintiff in ejectment his full remedy by two actions. He obtains verdict, judgment, writ of possession, in one; he must bring another for the mesne profits, to which his success in the first entitled him. The Bill most properly enables him to recover both the possession and the mesne profits by the same suit. So when a person complains at law of an infringement of his patent, or of any other tort which gives him a right to recover damages, he cannot stop the acts of the wrong doer without going into a Court of Equity. The Bill, in all cases of disputed right, where a Court of Equity would grant an injunction, arms the Courts of Law with the power of staying the exercise of the right of the defendant, pending the proceeding, to ascertain it. But this is not the only instance in which the principle of fusion is adopted by the Bill. It makes choses in action generally assignable, allowing the assignee to sue in his own name without resorting to equity; but it provides of course the necessary guards to this right, and among others establishes a Registry of Assignments. It further abolishes the vexatious rule that an equitable interest, as an agreement for a lease, cannot be used at law in bar of an ejectment; and that other vexatious rule which makes an outstanding legal estate a competent defence in such case. The former of these amendments has, I understand, for many years been introduced into the procedure under the Civil Bill jurisdiction, an equitable lease being there a bar to ejectment.

But now let us return to the action, which we have been following through its successive stages; and we are brought to the result, judgment and execution. This Bill contains several salutary provisions, both on this head and on proceedings in error. But I shall only detain your Lordships by stating the improvement which it propounds upon the process of execution. To be sure, the law a few years ago did exceed itself in absurd distinctions and refinements under this head. At the period to which I have more than once referred, in 1828, when a creditor had obtained judgment, he could only have the fruits of it in case his debtor possessed real property, or personalty im- 805 possible to be concealed; and he might openly be possessed of any amount in stock, bonds, bills, bank notes, nay, in moneys numbered, and the execution could not touch a farthing of it. The very cash which he had borrowed, and for which he had been sued and found liable to repay it, might be lying on his table when the sheriff entered, and that officer touched it at his peril. Lord Mansfield inclined to relax this rule, so far as money was concerned, but he could not; one Judge held that it would be removing landmarks; another (Lord Ellen-borough), that it would be unsettling the fundamental principles of our jurisprudence. The greater part of this absurdity has for some years ceased to disfigure that system. Since 1833 in England, since 1840 in Ireland, money and bank notes may be taken in execution; but still the process is most imperfect; as regards bonds, bills, stock, shares, annuities, a suit is required. This Bill provides for the immediate transfer of the property; for the plaintiff's action in the sheriff's name on bonds and bills; for the attachment of stock and shares, so as to be a stop on any transfer by the debtor; and finally for the beneficial possession by the creditor, in case the debt be not paid forthwith.

I am sensible, my Lords, of the imperfect manner in which I have aimed at doing justice to this important measure. I have barely given an outline of those portions which are in advance of our English procedure law; nor have I by any means even recited the whole of these improvements. The Bill was brought up from the Commons a week ago, and I have not had it more than a day or two in my hands. A hundred and forty of its clauses are taken from our Act, but with considerable variations; some of them necessary for adapting them to Ireland, and others improving upon those provisions. A hundred and twenty are almost entirely new; and to these I am more especially anxious that the attention of this country should be directed. But the most important of them are not now propounded for the first time. How long ago do your Lordships think was the greatest of these changes in the law attempted—the making choses in action assignable? Just within one year of two centuries. This rational course was proposed by a Committee of the other House, on which sat men renowned in history; some illustrious for their great deeds alone, others for their virtues also. Among its members we find named the Lord General Cromwell, then representing 806 the town of Cambridge, and Sir Matthew Hale, afterwards the great Chief Justice. This proposition was the eleventh of the fourteen for the amendment of the law, which that Committee reported to the House; and most gratifying is it to think that all the others have since become the law of the land; brought forward though they thus had been at no very auspicious season. It bears out that most consolatory remark of Lord Bacon, which has so often cheered one under temporary disappointment, that hardly ever was there a good proposal made for amending the law, which did not sooner or later bear fruit. Earnest as my desire is to carry the whole of these improvements this Session, being quite certain that, if effected for Ireland, they must immediately be adopted here; I yet cannot but admit that the absence of the Judges on circuit, and of the Chief Justice, as well as Lord Truro, and other law Lords from this House, makes it difficult to proceed now with the whole of the Bill. We may, however, at any rate pass all the provisions which have already been enacted for England, with the changes necessary for adapting them to Ireland, and with such of the other improvements upon our procedure as cannot well admit of controversy. All that is necessary now to do, is to give the Bill a second reading, and in the Committee we can settle what portion shall be postponed.