THIRD READING. (Hansard, 5 June 1857)

§ EARL STANHOPE
asked the noble and learned Lord on the woolsack whether he did not think that an inconvenient increase would be made to the judicial business of their Lordships by the change introduced in Committee in the 37th clause of the Bill, which would constitute the House the Court of Appeal under the measure? He would remind the noble and learned Lord that that change involved a departure from his own original proposal, that the appeal in that case should be to the Judicial Committee of the Privy Council.

THE LORD CHANCELLOR
said that, 1196 he did not think the number of appeals to the House would be greatly increased under the operation of that measure, because the appeals in those cases had hitherto arisen out of the question of the sanity or insanity of the testator, and under the Bill any question of that kind would be decided by a jury. Appeals would only be brought before their Lordships in cases of alleged misdirection by a Judge, and those cases did not constitute one in every hundred of the appeals which had hitherto been made. With regard to the change introduced into the 37th clause, he had to observe that that change would only carry into effect the view he had originally entertained upon the subject. It was only in deference to the opinion of others that he had proposed in the Bill that the appeal should lie to the Judicial Committee of the Privy Council, and not to that House; and he was very glad to find that he was enabled in Committee to carry out the conclusion at which he had in the first instance arrived.

THE EARL OF DONOUGHMORE
said, he must express his regret, that the noble and learned Lord should have given so decided an opinion in answer to a noble Earl (the Earl of Malmesbury) a few days ago, that it would be impracticable to grant compensation to the proctors. The noble and learned Lord said it was impossible to grant them compensation, because their offices had not been abolished; their business might, indeed, be diminished, but all great public reforms were attended with some injury to private interests. That would be a very good argument if it had not been possible to reform the court without destroying their business; but such was not the case. There was no necessity for throwing open the new court to solicitors; no great public benefit could arise from it; and the business ought to be left in the hands of gentlemen who were so well qualified to discharge it. There were several clauses in which he (the Earl of Donoughmore) would venture to suggest some alterations. Clause 43 provided that probate and administration in non-contentious matters might be taken out in the district court when the whole property did not exceed £1,500; he would suggest that the maximum should be reduced to £800. It was further provided, that a simple affidavit that the property was under £1,500 should be conclusive as to the fact. He thought some further security was necessary. As the district registrars were to be paid by fees they had an interest in increasing the 1197 number of probates, and would not look narrowly into the affidavit. He suggested that, in order to check fraud, the party should make a return of the particulars of the property. The 73rd clause appeared intended to relieve the Bank of England of a portion of their present responsibility as to transfers. In all cases when stock in the public funds is to be transferred to an executor or administrator, the Bank now required the production of a London probate, but as that would be impossible, when probate would be granted in the district court, the Bill proposed to relieve the Bank of this responsibility. He thought that would be very unwise, and would suggest an Amendment to the effect that when ever any portion of the property of a testator consisted of stock in the public funds it should be necessary to take out probate in London. The 89th clause proposed to repeal the Act which restrained proctors from making an agreement to share their profits with any person; the effect of this would be that the solicitors would swallow up a great deal of the business still left to the proctors. He wished also to call attention to the position of the proctors of the Prerogative Court of York, who were much worse treated than those of the province of Canterbury. It was proposed to abolish the court of the province of York altogether, so that even on the noble and learned Lord's own admission the practitioners of that court had an irresistible claim to compensation.

LORD WYNFORD
was understood to contend that, under existing Acts of Parliament, certain officers of these courts were not entitled to the compensation provided by the Bill.

THE LORD CHANCELLOR
said: considering that the question before their Lordships was only that the Bill be road a third time, the Motions, or rather the observations, which had fallen from his noble Friends should rather have been made whilst the Bill was in Committee. He did not, however, complain of the course that had been taken, as his noble Friends had doubtless considered that it would be the most convenient to himself: The objections depended, first of all, on the question of compensation. His noble Friend at the table (the Earl of Donoughmore) thought that the Bill was unjust in not giving compensation to the proctors. When he said the proctors ought to receive compensation, he must do him (the Lord Chancellor) the justice to remember that all along he had wished to give compensation, where he could clearly 1198 see his way to do so, to those who were really likely to suffer loss by any proposed changes. It was the duty of those who proposed such changes to endeavour to mitigate the evils resulting from professional loss as far as possible; but if every reform was to be delayed until all possible loss to the different classes affected had been adjusted, no one need undertake the task of a reformer. But how was it possible to estimate, for the purpose of compensation, the loss sustained by the members of a whole profession? It would be necessary to take an account of the profits of each individual for a certain number of years past, and to set off against that an estimated average of the profits which would be made by the same individual under the future system. When the proposal came to be worked out, it would be found to be impracticable. It would, however, be incumbent on those who administered the patronage of the proposed system to appoint to situations those who might suffer by its introduction. His noble Friend had complained that too much compensation was provided, and another noble Lord bad objected to the compensation that was proposed to be made in other cases. He (the Lord Chancellor) thought that there were certain persons, no matter whether they held sinecures or not, who were justly entitled to compensation. Whether it were correct or not, the principle was always acted upon in this country, that you could not take away from a man a source of livelihood to which he had a right without making him a compensation for it; but there were certain persons excepted out of this principle by the operation of the Acts to which his noble Friend had referred; and it was to those persons to whom he (the Lord Chancellor) wished to give compensation by the present measure. They were those who, but for those Acts, would have held offices for life, and who were clearly entitled to receive compensation. The provisions of the present Bill would also extend to those who held reversionary interests in offices, and to many who did not exercise the duties of the offices which they held in person. Another provision objected to was, that which enabled an attorney in the country to employ a proctor in London as his agent. Why should he not do so? The country attorney was in the habit of employing London agents for other business; and the arrangement was only m conformity with what he should suppose would be the general opinion of mankind. With refer- 1199 ence to the sum of £1,500, the limit of value at which causes were to be tried by the district Judges, he (the Lord Chancellor) had simply adopted the recommendation of the Commission on the subject. It was necessary to draw the line somewhere, and this sum had been fixed upon after much consideration. Finally, as to the question of opening the new court to barristers and solicitors, that was the only point on which all persons had concurred. It was impossible not to allow these practitioners to come in in all cases of contentious business, whilst the ordinary business might be managed by the other members of the court. He would move that the Bill be now read a third time.