HL Deb 10 April 1862 vol 166 cc749-51

Order of the Day for Second Reading read.


, in moving the second reading of this Bill, said, that it was an additional step, though a small one, in the progress of improvement in the Court of Chancery—a Court which, he would not hesitate to say, having regard to the nature of the cases which it decided, and the value of the property which it administered, was now one of the cheapest and most expeditious, as well as one of the best in the kingdom. It had formerly been the practice for the Court of Chancery, in cases that came before it, to send questions of both law and fact to the Courts of Common Law for determination. The decision of these Courts, however, was by no means conclusive, and there was one case on record in which Lord Eldon sent a case to the Queen's Bench; but, being dissatis- fied with the opinion, he sent it to the Court of Common Pleas. Lord Eldon was again dissatisfied with the decision, and he finally decided the case upon his own judgment, and a very large estate was now held upon that decision. This was on the construction of legal instruments—a question of law—but the same course was pursued with the same result in questions of fact. An issue was directed to be tried in a Court of Common Law; but if the Judge was dissatisfied with the verdict, he refused to act upon it. At that time the mode of taking evidence in the Court of Chancery was so defective that it was impossible to arrive at any satisfactory result. In the year 1852 a revolution was made in the practice of the Court of Chancery, and an Act was passed giving the Court the power of determining any question of law or fact which might arise previous to the decision of the equitable question. It was intended by this Act that the Court of Chancery should decide for itself all the questions necessary to enable it to pronounce judgment. This Act, however, was not obligatory, but only permissive. Another Act, passed in the year 1858, gave the Court of Chancery additional powers for determining all questions of fact. It was empowered to summon juries, and the verdicts of such juries had the same effect as if they had been given in a Court of Common Law. Last year, a Commission having issued, several suggestions were made for improving the practice of the Court. As the Judges were now provided with full means of ascertaining the truth in any manner which they thought most advisable, it was desirable to make it their duty to avail themselves of the facilities they possessed. At present, when parties came prepared, at great expense, to try the question of law and fact, they were sometimes told to go before a Court of Common Law to try their right, and then to come back to the Court of Equity and claim its interference. When the Bill was originally brought in, in the other House, it made it obligatory upon the Judges of the Courts of Equity to try all the questions that came before it in the proceedings in a cause; but it was afterwards thought desirable to insert some qualifying words, so that the Act might not cause additional expense beyond what was now incurred in certain cases. The Bill was not intended to effect a great deal; but he thought their Lordships would agree with him in thinking it desirable that the Court of Chancery should avail itself to the fullest of these facilities for the administration of justice which the Legislature had already decided on placing at its disposal. He therefore begged to move the second reading of this Bill.

Moved, that the Bill be now read 2a.


said, he fully approved the principle of the Bill: the only point on which he differed with his noble and learned Friend who had moved the second reading was as to what the Bill would accomplish. He thought it would accomplish a great deal, provided that its obligatory character was preserved; but certain alterations had been made in the Bill in its passage through the Commons, which, in his opinion, would very much detract from its efficiency, and might lead to its obligatory character being evaded. He should like to have an alteration made in the language of the second clause, in order to leave no loophole—no mode of evasion; in order to render it certain and sure that the Court of Equity should not send to the other side of Westminster Hall any portion of the justice which it ought itself to administer. He should communicate with his noble and learned Friend as to the way in which he thought the clause might be altered, so as to render it more effectual for carrying out the great object of the Bill.


concurred with the noble and learned Lord on the Woolsack in what he had said of one of the alterations; but it had been made in deference to an opinion of great weight— namely, that of the Solicitor General.


said a few words on the measure, which were inaudible.


said, that although he objected to the modifications which had been introduced into the Bill in the other House, he had no wish whatever to interfere with the discretion now permitted to the Court of Chancery of deciding as to how and when proceedings should be initiated. He only feared that the wording of the clause as amended might defeat the object of the measure.

Motion agreed to.

Bill read 2a, and committed to a Committee of the Whole House on Tuesday, the 6th of May next.