TESTAMENTARY JURISDICTION BILL. (Hansard, 30 March 1854)

THE LORD CHANCELLOR
said, it was not his intention to move—notwithstanding the notice he had given—the restoration of the clauses relating to real estate, which had been struck out in the Select Committee. Personally, he entertained the same opinion as he had held when he introduced the Bill, and as had been held by the great majority of the Commissioners who had inquired into this subject. He thought that the retention of the clauses would be very beneficial; but he had had so many communications, not only from his noble and learned Friend now on his left (Lord St. Leonards) and those who usually acted with him, but from other noble Friends of his upon the Government side of the House, and who were also of opinion that the clauses ought to be withdrawn, and that unless they were withdrawn the Bill would be defeated, that he had felt it his duty to yield to what appeared to be the general sense of the House. Another reason which had induced him to take this course—notwithstanding that he had thought the matter so important as to give notice to restore the clauses 60 relating to real estate—was the doubt which he confessed he entertained whether it was quite a wise course to pursue, when a subject had once been referred to a Select Committee and considered and decided on by them, to move the restoration of any matter which that Committee had struck out. He felt that this would be a strong measure to adopt, except under very extraordinary circumstances; and although he had felt justified in giving notice of a Motion to restore these clauses, on account of their having been recommended by so very large and preponderating a majority of the Commissioners, he thought it better, under all the circumstances, not to persevere with it. What he proposed, therefore, was that the House should go into Committee pro formâ, for the purpose of introducing amendments, with respect to compensation and some other matters, that the Bill with these amendments should be printed, and that the recommittal should take place on Monday next.

§ LORD ST. LEONARDS
who had given notice of his intention to move a clause confining the jurisdiction in matters testamentary to one branch of the Court of Chancery, to empower the Judge of the Prerogative Court to sit as a judge of such branch, and to give precedence in contentious testamentary matters during ten years to the present advocates, addressed the House briefly in support of these propositions. With respect to the first, the noble and learned Lord said, while it would give the jurisdiction to the Court of Chancery, and obviate the necessity of creating a new court, it would keep the testamentary business together, which was a very important object, that business being of such a nature that it ought to be confined to one court. With respect to the advocates, who had devoted their lives to the successful pursuit of their profession, and who were about to have the ground cut away from under them by the operation of this Bill, his proposal to give them preaudience, in order that the public might have the advantage of their learning and experience in that branch of practice, leaving the business open in other respects to the general body of the bar, was one which he was sure the bar would receive with very great pleasure. Upon the other point, he thought there could be little doubt that great benefits would result if they should be able to secure the services of the learned Judge of the Pre- 61 rogative Court in connection with that class of cases which had occupied so much of his attention, and over which, up to this moment, he had had perfect jurisdiction.

THE LORD CHANCELLOR
said, his noble and learned Friend and himself were very nearly agreed as to their object; but he thought there would be some difficulty in discussing at this moment the details of the proposed Amendments. The better plan would be for his noble and learned Friend to give notice of his clause, and have it printed. He (the Lord Chancellor) would have the Bill altered in conformity with his own view; and if that alteration should not meet his noble and learned Friend's approval, it would be open to him, of course, to propose his clause in Committee.

LORD CAMPBELL
expressed his regret that the clauses relating to real estate had been struck out by the Select Committee. He thought, however, that his noble and learned Friend (the Lord Chancellor) had exercised a wise discretion in the course he had pursued in acquiescing in the loss of those clauses, though he must express his opinion that the measure would be a very imperfect one without them; and he had thought that within that House there was a great weight of authority in favour of that part of the measure; and although he now heard for the first time that there was a strong feeling against it, he should be sorry to be included in the number of those who opposed it. He, for the most part, deeply regretted that after a will disposing of real and personal property, which now stood on precisely the same footing, as far as testamentary disposition was concerned, had been established by the solemn adjudication of a court of competent jurisdiction, its validity might still be questioned in an action of ejectment, and that a distinction for this purpose should be made between freehold and leasehold property. He concurred with his noble and learned Friend opposite (Lord St. Leonards) as to the advantage which would result from confining this jurisdiction to one branch of the Court of Chancery, instead of dividing it among all the branches. And he admitted that the case of the advocates was one which ought to be dealt with with great tenderness towards a most learned, respectable, and honourable body. He doubted, however, whether giving them precedence of all the Queen's Counsel, although it would place them in a very honourable position, would 62 be found very profitable. He thought they had a much better chance of being employed as juniors than as leaders, and he suggested that their own opinions should be ascertained before this arrangement was pressed.

LORD BROUGHAM
was understood to concur in the propriety of forming a court within the Court of Chancery for hearing cases of testamentary jurisdiction. The interests of the public would be, he thought, consulted by retaining the services of the learned Judge and the learned advocates who now practised in Doctors' Commons.

§ LORD ST. LEONARDS
would endeavour to ascertain the wish of the bar on the subject. There were gentlemen of great learning and experience practising in Doctors' Commons, but with regard to the juniors of that court, he did not wish to place them, against their will, over the heads of persons who had a great deal of business in the Court of Chancery. There might be a power given to these gentlemen to declare at once the position in which they would like to stand in this respect.

THE LORD CHANCELLOR
said, that the salary of the registrar, the sealer, and the record-keeper would be fixed at the same amount as they had previously received, as nearly as the amount of fees received by them could be ascertained.