HL Deb 02 March 1854 vol 131 cc171-5

My Lords, in rising to ask your Lordships to give a third reading to this Bill, I feel still more occasion than my noble and learned Friend on the woolsack did the other evening to ask your indulgence, on introducing a subject so comparatively trifling in itself, and, in the interest which it is likely to excite, so immeasurably less material than that which above all others now engrosses your Lordships' attention—namely, a declaratory Bill for the amendment of the law respecting the jurisdiction of the County Courts. Not, my Lords, that I grudge—God forbid!—in the slightest degree, the absorbed attention of the community, as well as of Parliament, to the great events which are now, I much fear I must say, impending over the rest of Europe as well as over this country. I have been long anxious, my Lords, to disbelieve that it was possible that such a calamity as war should disturb the peace of the world. I have long struggled against that belief, in spite of all the too manifest indications that appeared of my being wrong. But, my Lords, as men are ever most ready to believe what they wish, so they are most reluctant to give their assent to what they most dread, most detest, and most abhor. My Lords, I could not conceive it possible that they—I purposely use a very vague and indefinite expression—that they who have hitherto stood forward as the patrons of order, the friends of peaceful institutions in Europe, and the guardians of arrangements by which that peace seemed to be secured—that they should, as we now find there is but too much reason to believe—to the grief of mankind, to the astonishment still more than the grief, and to the indignation still more than the astonishment of the world—that they, I say, should have become, all at once, the disturbers of this peace and the abettors of wide-spreading insurrection and confusion; and if it is not wide-spreading, it is owing, first of all, to that happy alliance between the two great Western Powers which Providence, ever educing good from evil, has been pleased to bestow upon us; and next, to the wise and firm, and I trust it will continue wise and firm, conduct of the German Powers, which, even more than the rest of Europe, have an interest in staying that great calamity, and which I hope and trust will show that they are acting according to their best interests, and in the discharge of their highest duties. My Lords, I must also say that the delay that has taken place I deem most fortunate for the world. I deem it not only most justifiable on the part of my noble Friends opposite, but praiseworthy in every sense of the word—for it is in that reluctance, which I share with them, as well as that disbelief of apparent impossibilities, that this delay has had its origin; and it has produced, in my clear and decided opinion, none but the best and hap- piest results. My Lords, I ought to apologise for stepping aside from the comparatively insignificant proposition which I am now about to make to you; but I have not before had an opportunity of expressing my opinions and my feelings on this subject; and I have had occasion to know that that silence of mine, which has not been voluntary, has been elsewhere misconstrued. My Lords, in reference to the Bill, the third reading of which I am now about to move—the important measure relating to the County Courts, to which your Lordships gave your sanction some few years ago, has been found to be attended with a misapprehension, as some will say, as to the purport and intentions of the Legislature in one respect; at all events an error was committed in framing the measure, and it is absolutely necessary that that error should be rectified. Your Lordships will remember that in 1833 a Bill was first introduced into the other House of Parliament for the establishment of County Courts, but that it was rejected. A Bill was also subsequently brought forward on the same subject in your Lordships' House, and after being referred to the Common-Law Commissioners, was carried to almost its last stage. My noble and learned Friend (Lord Lyndhurst) and I, though differing with respect to some of the provisions of that Bill, agreed that the best course would be to read it a second time—which was done after the Bill had undergone a good deal of discussion—and then to refer it to a Committee, by whom the whole provisions would be thoroughly examined; then, the Bill being reduced to a state in which it might be fit to pass, that the discussion on its merits should be taken on the third reading. Notwithstanding, however, all our efforts to make that Bill as perfect as possible, it did not pass into a law. Now, in that Bill there was a very important clause, which provided that all questions, touching tolls, franchises, bankruptcy, and other cases not coming under the description of debtor contract, as well as certain questions of tort, should be excluded from the jurisdiction of the local courts unless by consent—the ordinary jurisdiction of the courts limited to cases under a certain amount in cases of debt or contract, and to cases under a certain lesser amount in actions of tort. But then there was this important clause, called "the optional clause,"—that, if both parties chose to have their cases tried, whatever might be the amount of the claim for debt or damages, and also if they chose to have one of the excluded actions tried—for instance, an ejectment, or a question relating to tolls, franchises, or bankruptcy—in all those cases, by consent, the jurisdiction of the local courts should be to the extent to which the parties agreed, notwithstanding the limitation of jurisdiction by a previous clause, to which I have adverted. The County Courts Bill of 1846, to my great regret, left out a very considerable portion of the Bill of 1833; and among other provisions the "optional clause" was unfortunately omitted. In settling the Bill of 1850, for extending the jurisdiction of the County Courts, it was deemed a good opportunity for introducing the "optional clause;" which, by a mere accident, had been omitted from the Bill of 1846, and from the Bill of 1833 the "optional clause" was copied, and inserted in the Bill of 1850; but in inserting that clause, the proper consequential change was not made in the "appeal clause," and the consequence was, that whereas by the Bill of 1833 an appeal was given in any case whatever, the Bill of 1850, instead of saying the appeal would lie in any case in which a party was dissatisfied with the judgment of the County Court, said, "in any case where jurisdiction was given by this Act," meaning the Act of 1850. Now it has been held by a competent tribunal that, in certain cases, jurisdiction was not given by the Act of Parliament, but by the consent of the parties. I contend, on the contrary, that it is by the Act alone that jurisdiction is given, though the ground on which that jurisdiction is given is the parties' consent. The consequence has been, however, that the appeal has been construed to be confined to cases of debt, contract, or tort, but does not apply to ejectments, tolls, franchises, bankruptcy, and the like; and it is to provide a remedy for that defect that I have prepared the Bill, the third reading of which I now move. There cannot be the slightest doubt that the mistake arose from inadvertency in copying the clause out of the Bill of 1833, without making the corresponding consequential alteration in the appeal clause. I beg your Lordships' pardon for engaging your attention so long; but I can assure you that no small importance is attached to the change I propose by the Bill, for the reason that the fact of there being no appeal in certain cases tends to restrict, rather than extend, the resort to the County Court. I ought to add that that resort is at present already materially restricted by the great fees attached to the practice in the County Courts, which are in many cases much larger than those is the superior courts. I hope the attention of the County Court Commissioners will be drawn to the necessity of making a diminution in the expense of resorting to those most useful and admirable tribunals, and so remove what is at present the only obstacle to their complete success.


said, there could be no doubt as to the usefulness of the measure introduced. He proposed, however, as an Amendment, that the words in the preamble of the Bill, stating that doubts had arisen as to the power given by the appeal clause, should be struck out. The only tribunal before which this question had come was the Court of Exchequer, the Judges of which were unanimously of opinion that there was no power of appeal given to those who had availed themselves of the optional clause. After their solemn decision, he considered the words stating that doubts had arisen on the subject would be disrespectful.


said, he would adopt the suggestion.

Bill read 3a; Amendments made; Bill passed, and sent to the Commons.

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