HL Deb 18 July 1854 vol 135 cc360-4

in moving the third reading of this Bill, said, that its object was to extend to the Ecclesiastical Courts provisions of the greatest importance, and placing them in a position, with respect to the reception of evidence, similar to that of other courts. By an Act passed in the year 1840, the Court of Admiralty obtained power to examine witnesses and take evidence vivâ voce. Previous to that time the practice in that Court, like that of the Court of Chancery, was to take evidence by written deposition, involving, to the frustration of justice, this absurdity, that one person saw the witness, heard him give his evidence, and observed his demeanour under examination, while another person had to decide on the value of his testimony, and to give judgment upon it. The procedure of the Ecclesiastical Courts and Doctors' Commons was superior in one material respect to that of the Court of Chancery, for, whereas, in the Court of Chancery, each question was put and answered in succession, one after the other, the person who framed the second question being in perfect ignorance of what the answer might be to the first—a most absurd and clumsy course of proceeding—in the Admiralty Court, on the other hand, the examiner had the power of taking the allegation and plea, and, by making that a kind of guide to him in the conduct of the examination of the witness, could put such questions as were likely to elicit satisfactory answers on points contained in the allegation. This latter practice, although better than that which used to be followed in the Court of Chancery, was still extremely imperfect as compared with vivâ voce evidence. But by the Act of 1840 the Admiralty Court was armed with the power of altogether dispensing with written depositions, and of calling witnesses before it and examining them, as at Nisi Prius, by counsel on both sides, and then of deciding on the weight due to their testimony. By this change one of the most valuable and important changes ever effected had been introduced; and it was the object of this Bill to extend the same principle to all the Ecclesiastical Courts. He had made an inquiry into the working of the Act of 1840 in the Admiralty Courts. Now, one great difficulty in extending parole evidence to the Court of Chancery had always been, that, instead of there being an affirmative on the one side and a negative on the other (as at criminal law), upon which issue was joined, there were a vast number of allegations and statements of fact in the Bill which were denied in the answer, and on the whole matter, as it were, issue was joined. Now a question of salvage was just a case of that description. The question was, the merits of the salvor, and how much he was entitled to. But that involved the consideration of a vast variety of circumstances and particulars, such as the state of the weather, the state of the vessel, the conduct of the party salving, and that of the party salved. All these circumstances had to be brought before the court, and evidence had to be taken upon them to enable the Judge to make up his mind as to the merits of the salvor, and the compensation due to him. Now, since 1840, questions of that kind had been repeatedly brought before the Court of Admiralty, and been dealt with in the easiest manner. Sometimes, after the witnesses had been examined, cross-examined, and re-examined, the Judge at once decided the case upon their testimony, and upon any documentary evidence which might be adduced. At other times he postponed his judgment for a day or two; but even then he had an authentic record of the questions put to the witnesses and their answers, and his own memoranda of anything that struck him at the time as to their demeanour, to refer to before giving judgment. The Bill for which he now asked for a third reading would give to the Ecclesiastical Courts the benefit of this great and important change. Having referred to the mode of proceeding in the Court of Chancery, he would remind their lordships of another course which was sometimes adopted, namely, the exa- mination of witnesses before a Commissioner in the presence of the parties. This system, though an improvement upon the examination by written interrogatory, had, not been so successful as the vivâ voce examination which had been adopted in the Court of Admiralty. It gave rise to endless expense and interminable delay, and was, besides, open to the great objection that the Judge did not see the witnesses, but only read the depositions. He had recently mentioned to their lordships a case of this nature, of which he had since ascertained further particulars. In that case a learned friend of his was engaged for eight or ten days in examining witnesses, at a distance of 200 miles from the court. At the end of that time the expense incurred amounted to 400l., and the depositions covered 400 folios. His learned friend had informed him that be was convinced that, before the examinations were concluded, the expenses would have amounted to 1,200l. or 1,500l., and the number of folios occupied by the depositions to 1,500. On the conclusion of the examinations, these depositions would be sealed up and would be transmitted to the Court of Chancery, in order that his noble and learned Friend (the lord Chancellor) might examine them and give a decision on the case. It was utterly impossible that any one, from reading such a mass of evidence as this, without having heard a word of it given, or seen the demeanour of one of the witnesses, could arrive at a distinct, useful, and trustworthy conclusion upon the case. He was aware that there might be difficulties in the way of introducing vivâ voce examinations into the Court of Chancery, but he was convinced from experience, and his opinion was confirmed by what had occurred in the Court of Admiralty, that these difficulties were by no means insuperable, and he trusted that before long we should see this most important improvement effected. The country was much indebted to his learned friend (Dr. Phillimore) for the preparation of this Bill. That learned person was a distinguished civilian, and it was upon his experience in the Court of Admiralty that this measure had been founded. A right rev. Prelate had suggested the extension of the measure to Ireland; but he (lord Brougham) had found that this could not be done without inserting in it a compensation clause, to introduce which this Home had no power. In England the examinations of witnesses were taken by any proctor who might, be appointed in each case; and on their part there could, therefore, be no claim for compensation. In Ireland, on the contrary, three or four proctors were selected, who were not allowed to practise, and upon whom was cast the duty of performing these examinations. If their offices were abolished, they would, therefore, be entitled to compensation; and this he thought was sufficient reason for not attempting to extend this Act to Ireland.


thought there could be no difference of opinion as to the great importance and utility of this Bill. He had no doubt that it would be a great improvement on the present system, and he trusted that it would furnish an example which might be followed, even if not entirely adopted, in the reforms which were now under consideration in the mode of taking evidence before the Court of Chancery. The improvements which had been recently introduced were very great, but still they were not entirely satisfactory. But, as the noble and learned lord was aware, there were great difficulties in the way of adopting a pure and simple system of vivâ voce examination. The Commissioners, however, were perfectly acquainted with the importance of some change being made, and it was very satisfactory to know that one of the most zealous of their body was the head of the Admiralty Court, in which this system, as the noble and learned lord had stated, had been found to work so advantageously. It certainly would be a matter for congratulation if, during the recess, some mode could be devised of getting rid of the present enormously expensive system; but the noble and learned lord must himself feel that simply to adopt a mode of procedure by which it would be necessary to have witnesses up from all parts of the country to be examined in the Court of Chancery—to have them detained in town, as they necessarily must be, day after day, while the cause was waiting to be brought on—would be materially to increase, instead of to diminish, the expense. It must be observed, however, that the Judges in the Court of Chancery had the power of calling for the witnesses and examining them vivâ voce if they thought fit, and also that, as there was in the Court of Chancery an appeal upon the facts as well as the law, the facts of the case must, under such circumstances, be fully looked into a second time by the Court of Appeal. He could assure his noble and learned Friend that the subject should have his most earnest attention.


rejoiced that this scheme was likely to become the law of the land. He had certainly, at first, grave objections to measures for the reform of the Ecclesiastical Courts, simply because he thought that those Courts had already been doomed, and that they would soon be allowed to die out. He had been told that the testamentary cases were to be removed to another tribunal, and that divorce and matrimonial cases were also to be removed from those Courts. It was also thought that the suits in Ecclesiastical Courts were to be altogether abolished. Unfortunately those hopes were now to be cruelly disappointed. It appeared that those Courts had a charmed life, and were immortal. Under such circumstances he thought that the present Bill would be a great improvement to the proceedings of those Courts.


said, the way to render unnecessary the bringing witnesses to london from all parts of the country, in order that they might be examined by parole in the Court of Chancery, would be to give to local courts power to inquire into the facts, and to return to the Court of Chancery a sort of special verdict, on which judgment should be pronounced. He hoped that this change would be speedily effected, and was convinced that without it there could be no complete and effectual improvement of the Court of Chancery. Bill read 3a, and passed.

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