HL Deb 08 June 1858 vol 150 cc1690-1

Amendments reported (according to Order).


said, the Bill was the converse of a somewhat material amendment of the Courts of Chancery and Common Law, passed by the Common Law Procedure Act. That Act gave to the Courts of Common Law certain portions of equitable jurisdiction, and this Bill, on the other hand was to give to the Courts of Equity certain portions of what had been hitherto common law jurisdiction. There was one part of the measure to which he objected—namely, the giving to the Court the power, without the consent of the parties, and without the intervention of a jury, to send questions of the assessment of damages before the Masters or Chief Clerks in Chancery. He had prepared an Amendment to carry out his views in that respect, but he would forbear moving it until the third reading of the Bill, in the hope that its promoters would themselves consent to make the requisite alteration.

After a few words from Lord CAMPBELL,


said, if this Bill passed in its present form, in all cases for the specific performance of a contract there would be another issue as to the amount of the damages sustained. He objected to a Judge sitting alone assessing damages, and should have divided the Committee on the point if anybody would have supported him. He trusted that his noble Friend on the woolsack would reflect seriously on the effect of this Bill, so that some alteration might be made in it before the third reading.


said, he believed Lord St. Leonards stood alone in his objection. The Bill was founded on the recommendation of the Chancery Commission of 1856; it had passed the Commons, and there the matter was fully considered by the lawyers who were Members of that House, and they were unanimously of opinion that the Bill ought to pass. The only difference from the recommendation of the Commissioners was in the special machinery by which the Judges would be able to perform the functions which were given them in assessing damages or ascertaining facts, namely, by enabling them to summon a jury. The noble and learned Lord near him (Lord Brougham) objected that the Judges, to whom was given the power by this Bill of assessing damages, might be disposed to transfer to the Chief Clerks that particular duty, and he objected to that being done without the consent of parties. He understood the Lord Chief Justice to suggest that there was no necessity whatever for this particular Amendment, because he considered the Judges would never shift from themselves the responsibility of assessing the damages except in eases of trifling amount, where it was infinitely better that they should be settled by the Chief Clerk than by the Judge in open court. He thought he might suggest to his noble Friend that it was not necessary to press his Amendment.


thought they were discussing a very unneccessary Amendment. There was nothing in the Bill to enable the Judge to transfer the assessing of damages to the Chief Clerk.


read the clause, which stated that "it shall be lawful for the Court to award damages, and such damages may be assessed in such manner as the Court may direct." This wording, he considered, justified the opinion he had expressed.

Report considered. Bill to be read 3a on Monday next.