HL Deb 03 April 1854 vol 132 cc320-5

House in Committee (upon Re-commitment), according to Order.

Clauses 1 to 4 agreed to.

On Clause 6,


said, that it would be preferable to establish a new Court of Probate rather than to transfer the testamentary jurisdiction to the Court of Chancery. By this means the grand difficulty about compensation to those who had vested interests in the Ecclesiastical Courts might be obviated, which otherwise would, he should apprehend, be fatal to the Bill. The Commissioners were far from being unanimous in their approval of the present measure, and, indeed, the transfer of the jurisdiction to the Court of Chancery was negatived by a majority of 9 to 3. He moved, "That for the words 'Court of Chancery' be substituted the words 'Court of Probate.'"


observed, that if the Amendment were carried it would have the effect of completely changing the character of the Bill, because its very title was "A Bill to transfer the Jurisdiction of the Courts of Probate to the Court of Chancery." The Bill had been read a second time, and to make it as perfect as possible had been referred to a Select Committee, and now it came before a Committee of the whole House. He therefore thought the present Motion, however proper on a second or third reading, entirely out of place, though he did not shrink from discussing the principle of the Bill at any stage of the proceedings. There were thirteen Commissioners appointed to consider this subject; four were in favour of transferring testamentary jurisdiction to the Court of Chancery simpliciter, and nine were against that simple transfer; and upon a further question proposed by one of the Commissioners, eight were against the constitution of a new Court of Probate. Under these circumstances he brought in the present Bill, transferring the jurisdiction to the Court of Chancery; and upon the occasion of introducing it, he stated the arguments which had guided him to the adoption of that course. He submitted that the institution of a new court was an evil, because the multiplication of courts entailed additional expense, and the more courts the less certainty in the law. The question whether a new court was neces- sary depended on this—whether the Court of Chancery in its present constitution was or was not able to absorb the business of the courts of probate. He had not the statistics which he had stated to their Lordships on a former occasion; but he believed the business of the probate courts would occupy sixty days, or fifteen days each, if divided among the three Vice-Chancellors and the Master of the Rolls; but, whether divided or not, that was the amount of work that would have to be done, and he thought it might be easily absorbed by either one or more of the equity courts. It was of infinite advantage that the same cause should be decided, from beginning to end, in the same court; and he bad never ceased to entertain the opinion that it was extremely undesirable to be splitting up the subject-matter of jurisdiction and directing the attention of certain judges to one particular subject. No judge was so able to discharge his duties whose mind was narrowed to one single subject. It appeared to him, therefore, their Lordships ought not to agree to this Amendment independently of the point—which, as a matter of form, was very important—that it ought to have been urged upon a second or third reading, but not in Committee, because, if carried, the whole of the Bill would fall to the ground.


said, he was opposed to the Bill, and should have divided against it on the second reading, had he not understood that it would still be open to object to its main provisions in the Committee. The proposed transfer of the probate jurisdiction to the Court of Chancery would entail great difficulties, and among others the difficulty as to compensation. The proctors of the Ecclesiastical Courts gave 2,000l. or 3,000l. for their privilege of exclusive practising, and this could hardly be taken from them without compensation. His persuasion was that the difficulties thus to be encountered would not be counterbalanced by any commensurate advantage, and that, on the contrary, there was a balance of convenience and advantage in confining the jurisdiction in particular classes of subjects to a particular court.


said, twenty years ago he had concurred in the Report of the Real Property Commissioners, which recommended the transfer of the probate jurisdiction to the Court of Chancery, and he adhered to the same opinion still. The present measure, however, had this advan- tage, that, as he understood, the probate jurisdiction would be exercised by a particular portion of the Court of Chancery. So, at least, he understood the measure; and on his construction of it, the advantages of both systems would be secured. He thought it better to let the Bill remain as it was, and, instead of a court of probate, that the jurisdiction should be referred to the Court of Chancery, with the understanding that there should be no choice of courts, or going from one to another of the Vice-Chancery Courts and the Court of the Master of the Rolls, but that it should all be referred to one court.

Clause agreed to, also Clauses 7 to 19 agreed to.

On Clause 20,

THE BISHOP OF ST. ASAPH moved an Amendment to the effect that present registrars and deputy-registrars should be allowed to continue their private practice for ten years after the passing of the Act.


said, it was impossible he could agree to the Amendment. Sufficient, salaries would be provided for registrars and deputy-registrars, and they would therefore be expected to devote the whole of their time to their public dirties.


said, he had already agreed that the jurisdiction should be in the Court of Chancery, and not in a court of probate; but he wished that it should be confined to one court in Chancery, and that the judge of the Prerogative Court, whose office had been kept up at his suggestion, should be called on to sit with the Judge of that Court when necessary. The clause in the Bill as it now stood enacted that the "jurisdiction should be in one of the Vice-Chancellors or the Master of the Rolls, as the Lord Chancellor should from time to time direct, and with him the Judge of the Prerogative Court should sit." What he wished to have done was, not that the Lord Chancellor should be able from time to time to appoint a court, but that the whole of this business should be attached to one court. The Court of Chancery, with its present business, had an excess of judicial power, and one of the Judges could attend to this business. The noble Lord then read his clause, which was to the effect, that the contentious business of probate and letters testamentary should be heard by such one branch of the Court of Chancery as the Lord Chancellor should direct, and the Judge of the Prerogative Court should sit with the Judge of that Court.


said, that this question rather related to the 37th clause, on which he should have been prepared to explain the clause as it stood in the Bill, but he had no objection to do so now. The object of the clause was to prevent the business relating to probate being dispersed over all the court, but should be done by one Vice-Chancellor's court. His noble and learned Friend objected to the Lord Chancellor having power from time to time to direct what the court should be; but he thought it might be left to the discretion of the Chancellor. When the Court of Review was abolished, and the appellate jurisdiction in bankruptcy was transferred to the Court of Chancery, the Act of Parliament gave the Lord Chancellor power from time to time to appoint the Vice-Chancellor, who should sit in bankruptcy, and why should not the same power be given now? especially as the absolute confinement of the business to one particular Vice-Chancellor might lead to inconvenience and delay, particularly during the long vacation. The clause of his noble and learned Friend only provided for the "contentious business," whereas, that in the Bill provided for the performance of "non-contentious" business, business of course and unopposed, by the same branch of the court. His noble and learned Friend also proposed to give precedence to the advocates of Doctors' Commons in the new court over all other barristers; but he (the Lord Chancellor) thought if those gentlemen desired it it would be a suicidal act. Those with whom he had consulted, however, were of opinion that it should not be so; for when the probate business was confined to one Vice-Chancellor's court the advocates would naturally secure the largest share of the business; while as the Bill stood, the inconvenience would be prevented which would arise when in important cases Queen's Counsel were required to be employed, and the advocates who were their juniors had precedence, which would of course prevent the former being retained. As regarded the Judge of the Prerogative Court, the Bill went further than the clause of his noble and learned Friend, for it provided that if the Lord Chancellor thought fit the Judge of the Prerogative Court might sit alone. He thought that the clause in the Bill provided all that was necessary, avoided difficulties which the language of the clause of his noble and learned Friend caused.


said, that he had been told by one of the principal advocates that the giving them precedence in the new court would be a great boon; but as he only wished to benefit them, if they did not desire it, he would strike that provision out.


inquired whether the establishment of one court in Chancery would have the effect of keeping up proctors and advocates.


said, he hoped so. He thought the business would naturally fall into their hands, although they would not have precedence. As to exclusive right to the business that was never contemplated.


said, that he could strike out that part of his clause which related to the precedence of advocates in the new court.

Clause agreed to, also Clauses to 36 agreed to.

On Clause 37,

LORD ST. LEONARDS moved the omission of the clause, and the substitution of the following:— That the contentious business in testamentary matters hereby transferred shall be heard in such one branch of the said Court of Chancery as the Lord Chancellor shall direct, and shall be heard by the judge or judges of that branch; and the present Judge of the Prerogative Court (whose office is not to be filled up after his retirement or death) shall sit with such Judge or Judges, and have the same power and jurisdiction over such matters as shall be brought before such one branch of the said Court of Chancery as is hereby conferred on the Judge or Judges of the said court; but the said Judge of the Prerogative Court is not to form part of the court before which any appeal shall be heard from any decision of the court in which he shall have sat; and the present advocates of the Court of Arches shall in the said Court of Chancery, upon the hearing of the matters aforesaid, originally or upon appeal there, only and during the period of ten years after the passing of this Act have precedence over the other members of the bar of equal or greater rank or standing; and the Lord Chancellor shall make such orders as he may deem necessary in order to give effect to their provisions. The present clause, as it stood in the Bill, provided that the contentious business in testamentary matters should be heard and determined by such Vice-Chancellor as the Lord Chancellor might, from time to time, appoint; but he wished it to be attached to one of the courts, and he was satisfied the effect of his clause would be to prevent appeals, and afford the most entire satisfaction to all parties.


thought the clause in the Bill was infinitely better than that proposed by his noble and learned Friend. It would effect the object which his noble and learned Friend had in view, while it was framed in strict accordance with the arrangement made ten years ago with respect to jurisdiction in bankruptcy, which arrangement had been found very convenient.

Their Lordships divided:—Content 10; Not Content 14: Majority 4.

Clause agreed to.

The remaining clauses and schedules of the Bill agreed to with Amendments; the Report thereof to be received To-morrow.

House adjourned till To-morrow.