COMMONS' AMENDMENTS CONSIDERED. (Hansard, 18 August 1857)

THE LORD CHANCELLOR
said, it would be necessary for him to state to their Lordships very briefly the nature of the Amendments which had been made in this Bill in the other House. The principle of the Bill, as it passed their Lordships, was that all ecclesiastical jurisdiction with respect to the matters to which it related should terminate, and it was proposed that a Queen's Court of Probate should be established in London, the Judge of such Court being appointed by the Crown. The Bill proposed that that Court should deal with all contentious cases as to the probates of wills, and that from thirty to forty courts should be established in various districts throughout the country, in which wills relating to property below the amount of £1,500, as to which there was no contest, might be proved. It was also proposed that the proctors of the court in London should continue to possess the exclusive right of practising with regard to non-contentious business; but that the general body of solicitors and barristers should be admitted to practise, so far as contentious business was concerned, concurrently with proctors and advocates. The main features of the Bill had not been changed in the House of Commons, but the material alterations made in that House were that the provision confining the jurisdiction of the District Courts to non-contentious cases, in which property below the value of £1,500 was involved, had been altered in such a manner as to give these courts jurisdiction in all cases, whatever might be the amount of property, provided there was no contest as to the validity of the will and the testator died within the district. That was a change as to the propriety of which there might be considerable difference of opinion; but the 1778 arrangement he proposed, as well as that adopted by the House of Commons, were both attended with advantages and disadvantages. The Bill, as he introduced it, provided, in conformity with the Report of the Commissioners, that the non-contentious business in the London Court should be transacted exclusively through the agency of proctors. The House of Commons, however, had not assented to that proposal, but had determined that the exclusive privileges of proctors should be abolished, and that all solicitors and attorneys should be admitted to a share of the business. He did not think he would act wisely in proposing the rejection of that Amendment. The House of Commons also adopted a money Resolution which, he confessed, he was unable in principle to approve. The Commons decided that all those gentlemen who were deprived of their monopoly in the practice should, on that account, receive a large compensation. It would be idle now to discuss that question; but he had at several stages of the Bill expressed his opinion that the diminution of practice was not a legitimate ground for compensation. However, those who were the guardians of the public purse thought differently, and had provided compensation equivalent to one-half of what those gentlemen before made by their practice, to share in which hundreds of other practitioners were now to be admitted. These were the main changes made by the House of Commons; but a number of minor alterations had also been effected. In the first place an alteration had been made, which he thought a useful improvement, in regard to the appeal from the decision of the County Court Judges. It had been decided by the Commons that the appeal should be to the Court of Probate itself, and he should ask their Lordships to add to that change, in mercy to the parties themselves, that on such appeal the decision of the Court of Probate should be final, and that the parties should not be allowed to carry it further. With respect to the procedure of the Court, it was thought in the other House that the clause empowering the Lord Chancellor, with the Lord Chief Justice, to frame rules was so worded that it might be left ad Grœcas Kalendas before the rules were framed, and the clause was now altered so as to require that the framing of the rules should be concurrent with the coming into existence of the new Court. To that change he thought that none of their Lordships 1779 would object. With respect to one cause of proceedure, on which a difference of opinion prevailed in their Lordships' House, a change had been made, adverse to what he had thought, and perhaps still thought, a better arrangement, by allowing the Judge of the Court of Probate, when questions of fact were to be tried by a jury, a discretion to try them before himself, or to send them to be tried by another Court. In their Lordships' House it was proposed that the first Judge of the Probate Court should be the present Judge of the Prerogative Court. An alteration had been made in that provision, but he thought it immaterial, for he understood that nothing would have induced that very learned and excellent person to accept the office; but inasmuch as he was not entitled to compensation as Judge of the Prerogative Court, the Commons had introduced words into the Bill, giving him compensation in respect to his office. It was quite obvious that the adoption of these Amendments was essential to the passing of the Bill, and, therefore, whether they were all precisely such as their Lordships would wish them to be, the question was whether the Bill, in its present form, was a great improvement or not on the present system. If their Lordships thought it was an improvement, he trusted that they would feel no difficulty in agreeing to the Amendments, and he, therefore moved that, with some verbal alterations, their Lordships should substantially agree to the Amendments of the Commons.

LORD WYNFORD
expressed his opposition to the Amendment extending the jurisdiction of the District Courts, which had been declared by a learned Gentleman in the House of Commons ["Order!"] as being most destructive and most dangerous to the security of property. Indeed, the learned Gentleman had almost threatened that if the Amendment were persisted in he would be obliged to withdraw the Bill. The learned Gentleman (the Attorney General) had used the strongest language in opposing the extension of this unlimited jurisdiction to the District Courts, stating that he did not think it possible for him to recommend the Government to accede to the clause as it now stood, apprehending, as he did, that if it were left in its present state the Bill might be converted into a great instrument of fraud. After the enunciation of such opinions by the chief law officer of the Government in another Place, did the noble and learned Lord, re- 1780 membering, too, his own declaration on the subject, intend to adopt the Amendment in question? If so, he (Lord Wynford) hoped their Lordships would refuse their assent to it; and even though it should be his lot to go out alone he should certainly divide the House on the subject. He objected in the strongest manner to the Amendments in the 70th clause, which related to the indemnification of the Bank of England in transferring stock. Who, he asked, was to indemnify the Bank in case of the administrators suffering in consequence? and what protection would be given in case of forged wills? The noble Lord concluded by moving that their Lordships disagree with the Commons' Amendments in the 40th and 70th clauses.

§ LORD ST. LEONARDS
said, that he agreed with the noble Lord in not approving of all the Amendments made in the other House, but at the same time he thought they were accompanied by such guards and precautionary provisions as would prevent any mischief resulting from their adoption; he would, however, advise the noble Lord not, at this period of the Session, to persevere in his opposition, as he might thereby endanger the passing of the Bill. He thought that the compensation granted by the Commons was alarming in its amount, which he understood would be about £100,000 a year; the instances in which it had been deemed fit to allow claims for compensation would also afford a very inconvenient precedent hereafter. He could not quite understand from the Bill whether the compensation were to be thrown upon the revenue of the country, or to be provided for by the increased stump duties, which would fall upon those persons who had occasion to resort to the Court. Some of the alterations made in the other House were, he considered, most judicious, and upon the whole he could not support his noble Friend's Motion.

LORD CAMPELL
congratulated their Lordships at the prospect of this Bill becoming law. No measure was more urgently required, and the improvement it would effect would be most striking. He, however, agreed with his noble and learned Friend (Lord St. Leonards) in respect to compensation. He drew a wide distinction as respected compensation between the case of persons holding offices which were abolished and the case of professional emolument. At the same time he did not object to some amount of compensation in the latter case.

THE LORD CHANCELLOR
reminded the noble Lord (Lord Wynford) that if they were to wait in the hopeless endeavour of making the two Houses agree upon every point of detail in a Bill like the present, they would never pass the measure at all. It was very difficult, respecting compensation, to estimate the probable amount it would reach under the provisions of the Bill, but he had no hesitation in saying that it was considerably overstated when it was put at £100,000. At present there was a fee upon every probate, to which the proctor was entitled, called a "proctor's fee," and he (the Lord Chancellor) had in the first instance entertained the hope of being able to abolish this heavy expense altogether; the amount of compensation, however, which the other House had decided upon allowing, would render it necessary in the first instance to continue a portion of that fee. His noble Friend, in the objections which he took to the clause respecting the liability of the Bank, was entirely mistaken. Under the present Bill, as under the old law, the Bank was indemnified if probate were granted upon a forged will, and, as had always been the case, it was not indemnified if the probate were forged, though the will might be genuine.