SECOND READING. (Hansard, 3 June 1858)

THE LORD CHANCELLOR
said, that he had to ask their Lordships to give a second reading to another Bill of considerable importance. It was one for the Amendment of the procedure of the Court of Chancery. It came up from the other House where it had received the unanimous assent of every legal Member, and it was recommended on the authority of a Commission consisting of persons peculiarly qualified to consider the whole of this subject and to suggest alterations in the law. When he mentioned that on that Commission there were the Master of the Rolls, one of the Lords Justices, two Vice Chancellors, a Judge of the Common Law Courts, Sir James Graham, Mr. Henley, and three of the most eminent counsel 1441 practising at the Chancery bar, their Lordships would feel satisfied that great care and deliberation had been exercised in considering the subject, and that they might feel safe in proceeding on their recommendations. The principle of the Bill was to enable the Court of Chancery to give full and complete relief to suitors who came before it. At present if any person had sustained any injury by the wrongful act of another for which he was entitled to sue for damages, and if he also desired to obtain an injunction to restrain the wrongdoer from continuing the wrongful act, he must apply to the Court of Chancery for the latter; but he must go to a common law Court to obtain damages. The tendency of all recent legislation had been to enable the different Courts to give as far as possible full and complete relief to all who applied to them. Before the passing of the Common Law Procedure Act in 1854 a Court of Common law had no power to compel parties who had been guilty of any breach of duty or engagement to perform that duty or engagement, but could only award damages for any injury that had been sustained. The Common Law Procedure Act gave the common law Courts power to issue a mandamus to compel the performance of a duty. Power was also given to those Courts to grant injunctions. Again, there were cases in which persons who were sued had, according to the strict rules of law, no defence to the action, but who had a very good defence in equity, and in such cases the defendant formerly was obliged to allow judgment to go against him in the common law Court, and then apply to the Court of Chancery upon equitable grounds to restrain the proceedings against him. The Legislature thought that course was needlessly complicated, and therefore by the Common Law Procedure Act permitted a defendant to plead an equitable defence to an action. He made those explanations to prove that the Bill he now proposed, to give the Court of Chancery power to award damages, was in strict accordance with the principles upon which Parliament had been acting of late. The power of giving damages would impose upon the Court of Chancery the duty of estimating the injury done, and of ascertaining all the facts relating to the case. This had rendered necessary that portion of the Bill which related to the examination of witnesses. The country was indebted to a noble and learned Friend (Lord St. Leonards) for 1442 an improvement in that respect by substituting vivâ voce examinations before an examiner for the old mode of taking evidence by interrogatories. Even that improved system was not exactly satisfactory, as in practice he believed that nine-tenths of the evidence in chief was taken upon affidavit, and the offices of the examiner were only called in for cross-examination, and even then his power was very limited. Now, he might also observe that it was extremely expedient that the witnesses to facts should he examined before the Judge by whom a decision on those facts was to be pronounced, inasmuch as great light was often thrown upon the question at issue by the very demeanour of the witnesses, and by the facility which existed of putting interrogatories to them, by means of which all doubt was cleared up. But that object was not at all secured by the present system. Some of the equity Judges, no doubt, bearing those considerations in mind, adopted the principle of examining persons in open court; but some of them objected to it altogether. Moreover, as he had said, the Court of Chancery possessed the power of assessing damages. Those who were accustomed to investigations in our courts of law were perfectly aware that no more important aid could be given to a Judge upon any question, and especially upon a question in which the assessment of damages was involved, than that which was to be derived from the assistance of a jury, and it was therefore proposed in the present Bill to leave it to the option of the Judge to allow a jury to be summoned in courts of equity to decide disputed questions of fact, and those also embracing the assessment of damages. In support of the views which he had just submitted to their Lordships he might mention a remarkable case which had come before the Lords Justices, and in which the parties to the suit were, as was not unusual, completely at issue, with respect to the facts. The Lords Justices had the parties in open court, where they were subjected to a lengthened vivâ voce examination, the result of that examination was, that the Lords Justices found themselves quite perplexed by conflicting testimony as to the decision at which they should arrive. They eventually determined to send down an issue to be tried before his noble and learned Friend near him (Lord Campbell) and a jury, and the upshot was that the jury found no difficulty in coming to a conclusion in favour 1443 of the truth of the statements of one of the parties. Their verdict in the matter was perfectly satisfactory; and although it was in opposition to the interests of the persons for whom he (the Lord Chancellor) happened to have been the advocate, yet he had no hesitation in expressing his concurrence in its justice. He had adduced the case as a slight illustration of the advantages which were to be derived from the assistance of juries in trying disputed questions of fact; and he might add, that so important did the principle appear to be to the Legislature, that in establishing the new Court of Probate it had given the Judges the power of calling in the aid of a jury to decide upon those questions. His noble and learned Friend opposite (Lord St. Leonards) entertained, he believed, some objection to certain clauses of the Bill; but he might inform him that he was prepared to assent, when the second reading had been taken, to remit the bill to a Select Committee, in order that its provisions might undergo more careful examination. The noble and learned Lord concluded by moving the second reading of the Bill.

LORD BROUGHAM
thought that this Bi11 would effect an important reform in the law by enabling suitors to obtain to a greater extent than at present a complete remedy for any wrong of which they complained in a single court. He thought, however, that the Judge should not have the option of directing that a jury should be summoned without the consent of the parties.

§ LORD ST. LEONARDS
said, he did not rise to oppose the Bill, of many of the provisions of which he was inclined to speak with favour. He quite concurred with his noble and learned Friend on the woolsack in the opinion that the names of those gentlemen from whom the Report on which the measure was founded had emanated were entitled to great weight; and he was prepared to admit that, so far as it tended to carry out the wish of the public and the Legislature, the Court in which a suit was originally instituted should entirely dispose of the subject-matter in dispute. The Bill proposed to give a Judge in equity, without a jury, the power of assessing damages; and to this he objected, believing that an equity Judge could not exercise that power beneficially, as he had no adequate machinery for the purpose. It was, he thought, a mistake in having a jury in a Court of 1444 Chancery, instead of sending an issue to be tried in a court of law which possessed the necessary machinery, and all the necessary experience in the ordinary working of the jury system. He did not object to a Court of equity having the same jurisdiction as a Court of law, so as to be enabled to deal with the subject of a suit in a manner to do full justice to the suitor. There was a portion of this Bill, however, which lost sight of that principle, and not merely gave a Court of equity the same power as a Court of law, but gave it a new and more extended power than had ever yet been attempted. In cases for specific performance of contracts, it was not often necessary to have recourse to both law and equity in order to have a contract specifically performed, and also to award damages. In many cases a Court of equity, when it granted specific performance, did not allow the parties to go to law. This proviso, therefore, gave a power far beyond any which had existed before. He did not oppose the general principle of the Bill, but he trusted that its details would receive the careful consideration of the Select Committee.

LORD CAMPBELL
expressed his entire concurrence in the principle of the Bill, which be took to be, one cause to one court. It was a reproach to Westminster Hall that, under the existing system, a cause oscillated from one court to another—from a court of law to a court of equity. He believed that nothing approaching to such a system existed in any other country in the world, and it was a great reproach to the administration of justice. He regarded this Bill as a step in the right direction; but, although great improvements had been effected, much still remained to be done. Where damages were to be assessed in equity, it ought not to be necessary to go from one court to another, employing different solicitors and counsel, and thus incurring a very wasteful expenditure. He thought it was a matter of congratulation that Courts of equity were now able of their own authority to do complete justice to suitors. He should state, however, his belief that what was called a fusion of law and equity was impracticable; but still there might be an equitable jurisdiction given to Courts of law, in order that they might be enabled to terminate satisfactorily suits commenced in the first instance in courts of law.

§ LORD CRANWORTH
was happy to add his testimony to the unanimous feeling ex- 1445 pressed towards his noble and learned Friend for the introduction of this useful measure. The Bill, in its main feature, was the result of the recommendations of the Chancery Commissioners in their third Report, which was presented at the end of the Session of 1856; and he (Lord Cranworth) had, in consequence, felt it to be his duty to prepare a measure—which, however, did not go as far as the present Bill—with the object of carrying out the recommendations of the Commission. If he was asked why he did not bring in that Bill last year, his answer was, that he believed Parliament was so fully occupied by the two great measures for the establishment of the Courts of Probate and Divorce, that he did not think it would have been satisfactorily dealt with. No such obstacle now existed, and he trusted that nothing would occur to prevent this Bill being carried. He did not see any reason why a person who sought specific performance of a contract should not be entitled to have it performed, and also to receive damages for any injury he might have sustained by reason of its non-performance. The Bill proposed to do more than was contained in the recommendation of the Commissioners, because it proposed in all cases to make it competent for a Court of Chancery to summon a jury. This might be quite right; but it was a power which could not be often usefully exercised, inasmuch as in the matters which came before those Courts there were seldom any disputed facts. If the proposed system was adopted, the delays which were now complained of in Chancery suits would be added to, if in every case a jury was to be employed. But as it was only proposed to give the power without making its use imperative, the provision might be a useful one. In the assessment of damages a jury would be useful, but it would be wrong to require one in every case.