Lords Sitting of 3 March 1865

MINUTES.
PUBLIC BILLS—First Reading— Courts of Justice Building* (23).
Second Reading—Game Licences (Ireland)* (16); County Courts Equitable Jurisdiction (9)
Referred to Select Committee—County Courts Equitable Jurisdiction* (9).
Royal Assent—Civil Bill Courts Procedure (Ireland) Act (1864) Amendment* (16).

COUNTY COURTS EQUITABLE JURISDICTION BILL—(No. 9.)

  SECOND READING.
  Moved, That the Bill be now read 2ª.—(The Lord Chancellor.)
  LORD ST. LEONARDSsaid, that when five years ago a Bill was introduced by the late Lord Chancellor (Lord Campbell), one of the objects of which was to give the courts of common law an equitable jurisdiction, he (Lord St Leonards) took the liberty of pointing out to their Lordships several serious objections to it, and not the least among them was that the Judges to whom it was proposed to extend the jurisdiction were not a class of lawyers trained to deal with the questions that would come before them; and this he said without any impeachment of their learning, as the two branches of law were totally distinct. The second ground on which he objected to that Bill was that the common law courts had not the machinery necessary for working satisfactorily an equitable jurisdiction; and thirdly, that the Judges had not sufficient time to undertake, in addition to their present labours, the additional duties which would be devolved upon them. The Bill was referred to a Select Com-

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  mittee, which, included, besides some eminent Members of their Lordships' House, all the Law Lords. They considered the Bill very carefully, the noble and learned Lord who had introduced it was obliged to consent to the striking out clause after clause, and the result was that when it came back to their Lordships from the Select Committee all the clauses which imparted an equitable jurisdiction to courts of law had been struck out. The noble and learned Lord in expressing his regret that the Committee should have struck out such most valuable clauses, expressed his hope that Parliament might before long be induced to adopt them. The noble and learned Lord, however, allowed the subject to drop, and nothing more was heard of it until the noble and learned Lord upon the Woolsack introduced his Bill last year, of which the present was a portion. The first objection he (Lord St. Leonards) had made to the original Bill applied with ten times the force to the present Bill, because their Lordships must be well aware that the County Court Judges must be incompetent as lawyers to deal with questions in equity. They had studied the law as Common Law lawyers, and were very well adapted for the positions they held; but very few of them had even in their lives practised in equity, and would not have ventured to give an opinion upon a case involving equity law, which they did not assume or pretend to understand. They had never been expected to exercise an equity jurisdiction, and they did not themselves ask for it; but the Bill would force this jurisdiction on a class of Judges who not only did not desire it, but who would, if asked for their opinion, pray to be delivered from it. The Judges were not to blame for wishing to avoid the novel jurisdiction, as when they accepted their offices they assumed functions they were well fitted to perform, and undertook no duties that they were not well capable of discharging; and he would venture to say that very few of them would have accepted the appointment if they had been expected to exercise a jurisdiction in equity. How, then, could they cast upon the County Court Judges new duties which they were unequal to perform, and which they had never undertaken? They were about to put their unholy hands upon £1,000,000 belonging to the Suitors' Fee Fund, and £500,000 from a Reserve Fund, not one single shilling of which they ought to
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  touch, in order to build a Palace of Justice, into which the rich man would walk and demand at the hands of competent Judges, assisted by a competent Bar, a just decision upon his rights. But this Bill proposed that the poor man, with his little all of £300 or £500, should not approach this Palace of Justice in all its grandeur, but must go to the County Court and have his rights decided by a person who professed himself to be totally ignorant of that branch of the law he was asked to administer. Then for the first time in England would be seen the rich man treading his way boldly into a magnificent Palace of Justice, and the poor man peddling about a muddy county town endeavouring to seek that justice he was sure not to obtain. There would be then truly one law for the rich and another for the poor. With regard, then, to his second objection—the want of the machinery necessary for properly carrying out equity law, let their Lordships compare that of the County Courts with that of the Court of Chancery, and they would at once see the impossibility of reducing to practice the theory of this Bill. When a Court of Equity undertook to do things it did them thoroughly. For example, if it undertook the administration of an estate it took the money, secured it, and distributed it. The County Courts had no machinery for that purpose, and was it to be said the poor man's £500 was less to him than the rich man's £100,000? By the improvements which had been and would be made in the practice of the Chancery courts, the costs of proceedings therein would be greatly reduced, so that the objection that they were two expensive for the poor man would be removed—the Courts had been opened to the poor man, and there he had the advantage of having his cause heard before Judges who had made equity their study and a competent Bar to assist them. If the Bill were based upon sympathy for the poor man, it showed itself in saving his pocket by giving him bad law—which nobody would wish to have at any price:—nor must it be forgotten that in the County Court there were no equity barristers, and the attorneys who practised there would be incompetent to assist the Judge upon any doubtful point. He repeated that they were taking money from the Suitors' Fee Fund which he solemnly declared belonged to the suitors of the Chancery Courts as a class, and to them alone—and were taking

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  it without any colour of right whatever—for purposes which were quite foreign to those to which it ought to be applied. He thought the proper application of the Fee Fund was to apply it to the reduction of the costs in Chancery, so that at a small cost suits might be disposed of in the highest court of justice, and that there might be the same law for the rich and for the poor. As to the Bill now under discussion, a great objection to giving jurisdiction in equity to County Courts was that the Judges of these courts were itinerant. The Equity Courts were always sitting in some certain and fixed places—whereas the County Court Judges went circuit, and might be forty or fifty miles off when an application was made to their court. A court of equity ought to be fixed; otherwise it could not answer the purpose for which it was intended. A resolution had been sent to him from the Standing Committee of the Jurisprudence Department of the Social Science Association, in which it was declared that they approved of the general principle of the Bill—the existing machinery of the County Courts was not adequate to the exercise of a jurisdiction in equity, and they strongly objected to the mode of remuneration proposed by the Bill. He concurred in that view; and last Session he had given notice of an Amendment to the Bill which his noble and learned Friend on the Woolsack had at that time before the House, the object of which Amendment was to reject the proposition for giving such a jurisdiction to these courts. The first section of the Bill now before their Lordships gave the County Courts jurisdiction in all matters in which jurisdiction was possessed by the High Court of Chancery, with certain limitations as to amounts, and except its powers and authority in lunacy. It was declared that the sum of money or amount demanded or sought to be recovered by any plaintiff in a County Court should not exceed £100 exclusive of interest and costs, or when the distributive share of any person in any estate did not exceed that sum a suit for £100 might involve some very nice questions which the County Court Judges with their little knowledge of equity would not be able to solve. There was a further limitation, according to which no suit which sought a declaration of right to any lands, tenements, or hereditaments, exceeding in value £20 per annum, could be brought in a County Court. But though the annual
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  value of a property might not exceed £20, the personal interest which the landlord had in it might be worth many thousands of pounds. Another section in the list of limitations was that suits for specific performance or the delivering up or cancelling of any agreement for the sale or purchase of property could only he brought where the whole amount or value of the property did not exceed £300. He did not, however, think that this limitation made the matter satisfactory, because there were no more delicate questions than those which had to be decided by a court of equity in suits for specific performance and suits for the cancelling of agreements, and these questions arose irrespectively of the amount involved—they turned upon the nicest distinctions and rested upon a great number of authorities. Under this Bill injunctions or orders in the nature of injunctions might be made by the County Courts, and also for stay of proceedings at law where the plaintiff in such proceedings sought the recovery of a debt provable under a decree for the administration of an estate made by the court to which the application for injunction was made; so that a party might go to the County Court and get an injunction against the Lord Chief Justice of England for proceedings in his court. The more the Bill was examined the more evident it became that such a measure would not work. Section 5 provided that if during the progress of a suit it should be made to appear to the Court that the subject-matter of the suit exceeded the limit in point of amount to which the jurisdiction of the County Court was restricted it should not affect the validity of any order or decree already made, but it should be competent to the said court, if it should so think fit, to transfer the suit to the Court of Chancery, and thereupon the suit should proceed in one of the Vice Chancellor's Courts. From this it appeared that if the limit were passed by even the smallest amount the parties might be driven to the Court of Chancery after all. The Bill further provided that suits for the foreclosure, sale, or redemption of property in mortgage should be taken in the County Court within the district in which either the mortgagee or the mortgagor had his usual place of abode. It was to be remembered that the mortgagee and the mortgagor did not usually reside in the same place, and that a man might reside at one end of the kingdom and have his money lent at the

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  other. A mortgagee, for instance, living in the north of England, might step into a County Court fifty yards from his door, and take proceedings against his mortgagor who lived in the south, and what an injustice and inconvenience that would be to the latter. The same was the case with regard to suits for specific performance. Either party might commence proceedings in the County Court of the district in which he lived or carried on business. He objected strongly to the manner in which the fees were to be levied, and the Judges to be remunerated for their additional labour. The Government were about to take £1,000,000 from the funds of the Court of Chancery, which he maintained was the property of the suitors, and which ought to be applied to the reduction of the fees, so that even the poorest might be able to avail themselves of the remedies provided by the Court of Chancery. He was strongly opposed to the Bill; but, on the whole, he did not think it advisable to divide the House against it on the present stage, though he should certainly do so on a future occasion unless the Bill were materially altered in Committee.
  LORD CRANWORTHsaid, he concurred entirely with his noble and learned Friend (Lord St. Leonards) in thinking that there were many provisions in this Bill which ought not to be allowed to stand; but, upon the whole, a Bill to give County Courts equitable jurisdiction in some cases of small amount would be exceedingly useful. The County Courts had now been constituted about twenty years. Their creation was in the first instance, a tentative measure, but it had succeeded admirably, and from time to time their jurisdiction had been enlarged, to the great benefit of the country; and he thought it not unreasonable to say that the time had come when an equitable jurisdiction might be conferred upon them, within certain limits, with further advantages. Surely courts which were intrusted with the duty of ascertaining whether debts were due were competent to wind up small estates, to ascertain who were the creditors, and to divide the assets. By the law as it at present stood, County Courts had a jurisdiction as to legacies up to £50; but they had no jurisdiction where people died intestate, leaving a small property. For himself, he had no doubt whatever that the Judges of the County Courts were fully competent to discharge the duties
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  that would devolve upon them. He agreed with his noble and learned Friend's objection to the manner in which the County Court Judges were to be paid for the extra labour imposed on them. When these courts were first instituted the Judges were paid by fees; but that was so objectionable, and was found to give rise to a feeling of suspicion so improper to be entertained with reference to any Court of Justice, that the system was put an end to, and he regretted extremely this attempt to revive it in however modified a form. This was a matter, however, which might be set right. On the whole, he could not but express his approbation of the Bill, and he hoped it would become law, with certain modifications.
  LORD CHELMSFORDsaid, that when his noble and learned Friend's County Court Bill was before the House last year, he had expressed his approbation of certain provisions in it giving an equitable jurisdiction to County Courts; because he thought it would undoubtedly be a desirable thing if equitable remedies could be brought within the reach of persons who could not afford the expensive luxury of a Chancery suit. He thought this Bill would, on the whole, provide the remedy. To prevent the County Courts, however, obtaining too large a jurisdiction would require very careful framing of the details of the Bill, and he wished to call his noble and learned Friend's attention to the wording of the first clause, which he thought might have rather a dangerous effect. The first clause ran thus—
  "Every suit or matter that may now be commenced and prosecuted in the High Court of Chancery may hereafter be brought and prosecuted in the County Courts, and the Judges thereof shall have full jurisdiction to hear and determine the same, &c, subject, nevertheless, to the provisions and restrictions hereinafter named."
  But unless those restrictions were very carefully framed the County Courts would get a jurisdiction to any amount; and he would suggest that it would be better if the clause ran—
  "The Judges of the County Courts shall have power to hear and determine every suit which may now be commenced in the High Court of Chancery in the following cases."
  He could not help fearing that if this additional business was thrown upon the County Courts, they would be found scarcely able to bear the increased burden. He had been informed by one of the Metropolitan County Court Judges that he had an average of 140 cases every day on which

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  he sat, and that he was frequently occupied until seven or eight in the evening in disposing of them. The only other point to which he would advert upon the present occasion was the very objectionable mode in which it was proposed to remunerate the Judges for the additional labour to be east upon them. He was inclined to believe that the plan proposed by the Bill did not have the entire concurrence of the noble and learned Lord on the Woolsack; but that he had adopted it under the belief that a proposition for an increase of salary to the Judges would meet with opposition elsewhere—such as he had in fact met with when introducing his Bill of 1860 in the House of Commons. He quite agreed with the noble and learned Lord that the salaries of the County Court Judges should be increased. The County Court Judges had not been treated either fairly or liberally by the country. Originally they were paid by fees; but a power was reserved to the Crown by Order in Council to commute those fees into salaries not exceeding £1,200 a year. The fees in some courts amounted to large sums, and an Order in Council was issued, giving the Judges salaries of £1,000 a year, they being allowed to practise at the Bar beyond the district of their respective courts. When the jurisdiction was increased to £50, an Act was passed, giving power to increase the salaries to £1,500 a year, but restraining the Judges from practising at the Bar. Some time after the Treasury gave £1,500 a year to ten of the Judges, £1,300 to two others, and left the remainder with their old salaries of £1,200. At the same time, provision was made that when the business of any County Court increased to a certain amount, the salary of the Judge should be raised to £1,500. He was told that the present Prime Minister objected to the arrangement, and thought that all the Judges should receive £1,500 a year. Soon afterwards, however, the 19 amp; 20 Vict. was passed, which took away from the majority of the Judges all prospect of increased salaries. During the interval labour of different kinds had been thrown upon the County Courts—in fact they were considered as judicial beasts of burden, upon whom any kind of new labour could be imposed. The noble and learned Lord, in introducing his Bankruptcy Bill in the House of Commons, in 1860, expressed an opinion that the country had dealt with the County Court Judges in a niggardly
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  spirit, and proposed to grant them an increase of £300 a year. That Bill dropped; and under the Act now in force the Judges had all the additional labour, but no increase of remuneration. Such a mode of dealing with those gentlemen was not just. He could not concur in the opinion that the County Court Judges, as a body, were incompetent to deal with Chancery business, for many of those learned gentlemen had passed many years in practice in the Equity Courts. By the provision in the Bill, however, no Judge was to receive a greater amount of fees than would raise his whole remuneration to £1,600 a year. The effect of that would be that in populous places, where the greatest proportion of new business might be expected to arise, and where the Judges now received £ 1,500, the only additional remuneration they would receive for the new labour would be £100 a year; while in districts where there was less business the Judge might get an increase of £400 a year. He should not at present enter further into details; but would express a hope that the noble and learned Lord would have influence enough in the proper quarter to accomplish his object of remunerating the Judges in a less objectionable manner. His own opinion was that all the Judges should receive £1,600, and some of them were well entitled to £1,800 a year.
  THE LORD CHANCELLOR: My Lords, I must ask the attention of your Lordships for a few moments. First I will advert to the subject last spoken of, the remuneration of the Judges. The noble and learned Lord has rightly divined that the mode I have adopted in the Bill is one dictated by necessity and not by choice. I am perfectly well aware of the objections to this plan. It is one I would not have resorted to if I had found myself able to carry another mode of remuneration. But it is a very serious question, as your Lordships will see, when I tell you the present expenditure of the country upon the County Courts. The sum voted in the last year for the County Courts generally was £152,000, and the salaries of the Judges, paid out of the Consolidated Fund, amounted to £82,000; so that the total expense was £234,000. I am by no means disposed to say that is too large an amount; but, at the same time, it is so large a sum that I was very unwilling to peril this measure by proposing that any considerable addition should be made to the salaries of the Judges. I was afraid

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  that such a course would involve the discomfiture of the Bill, or, at least, that the proposition would not meet with the assent of the House of Commons, so that the Judges would be left without additional remuneration for new labours to be imposed upon them. I concur in much that has been said as to the merits of these functionaries and the inadequate manner in which they are paid. I protested against the reduction of their salaries. I desire to augment their salaries to an amount of £1,600 a year. It was in order to avoid the danger of the Bill being utterly defeated that I have now proposed this mode of remuneration, not as the best mode, but as the only one which I think there is any chance of getting the House of Commons to assent to. As to the measure itself, I can only say I am not surprised at the opposition of the noble and learned Lord near me (Lord St. Leonards). Neither do I desire otherwise, for I know the great advantage of having his determined opposition, because we are certain to have the benefit of the close scrutiny of all the provisions of the measure. At the same time, I hope that his opposition is with a view to amend and not to destroy the Bill. At the same time I regret that my noble and learned Friend, with all his experience and the great respect with which his opinion is received, should have spoken of the County Court Judges in the manner he has done. My noble and learned Friend has referred to these Judges as being utterly incompetent to administer business in equity. I was sorry to hear that opinion fall from my noble and learned Friend, because he has practised in the Equity Courts, and was present when Lord Lyndhurst was suddenly transferred from the Court of Common Law to the Court of Equity, which he afterwards adorned for so many years. I never heard that any charge of incapacity was brought against him; and the same thing may be said of a great number of other Judges who were transferred without any warning in the same way. My Lords, I appeal to my noble and learned Friend whether he would be in the situation he says the County Court Judges are—that they are men ready to confess and acknowledge their incompetency. I am not at all aware that those gentlemen have any such extraordinary modesty, and if they have I should by all means desire them to get rid of it as soon as possible.
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  Modesty in regard to the administration of equity in matters of this description is greatly misplaced, for the greatest portion of what is denominated equity is nothing in the world but good sense and common reason guided by some general knowledge of the maxims and principles of law. I do not contemplate with any fear the conduct of gentlemen who have been selected from the ranks of the Bar—from the manner in which the County Court Judges have been selected for the last twenty-five years, I believe that their equity administration on those subjects which the Bill proposes to add to their present duties will be distinguished by good sense, care, skill, and knowledge in the law. The only objection which is made to the establishment of the County Courts is similar to what has been urged this evening—the inferior administration of justice. One of the provisions of the statute by which those courts were established shows that they were originally intended to apply to equity as well as common law; and I know not in what manner they could better be made auxiliaries for the public good than in being intrusted with the administration of justice in those cases which from the nature of things would fade and dwindle when attempted to be brought within the cognizance of a superior tribunal. I do not purpose following my noble and learned Friend on my left (Lord St. Leonards) into the argument of which he has given us a foretaste to-night, and of which he threatens a continuance upon another occasion. But when my noble and learned Friend says I had better abstain from putting sacrilegious hands upon the Suitors' Fee Fund, which ought rather to be applied to the reduction of the fees of the court, my noble and learned Friend forgets what he ought to have remembered—the effect which has attended the reductions already made. I hold in my hand extracts from certain bills of costs, and will appeal to them to show the necessity of the measure and the impossibility of otherwise opening the doors of equity to small cases such as those now proposed to be transferred to the County Courts. In the first case, I find that there was a suit instituted in the Court of Chancery to get a decree for some property not exceeding in value £150. The costs amounted to £95 13 s.; but the court fees, the reduction of which is the panacea of my noble and learned Friend, were only £5 1s. 6d. The costs and court charges therefore amount to

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  £90 5s. 6d., which I think is quite a sufficient bar to attempt to get relief from Courts of Equity in such small cases. The next case is something still worse. There was a small suit instituted for the administration of an estate. The whole estate was £400, and the debts on it £100. The costs amounted to £139 8s. 8d., the court fees being only £9 12 s. It is no reproach to the court that these costs were so large, for the expenses arise from the fact that the suit originates in the country and the business has to be conducted between country and London solicitors, involving great loss of time and increase of expense. If witnesses be required these witnesses would also probably have to come to London, or a commission must have gone down to examine them in the country. The great fault of lawyers is that they become so enamoured of the old system in which they have been bred, and in its principles, that they refuse to see anything but good in its application, and they look with suspicion on any plan which is likely to make the form of judicial procedure less elaborate and less costly as likely to cause a departure from that exactness in which they believe justice resides. There are some criticisms upon the subject of the Bill, upon which I believe a great deal can be said pro and con.; but I shall be extremely glad to have the measure subjected to every kind of scrutiny and anxious care, in which I am sure I shall have the assistance of my noble and learned Friend, and I trust, therefore, that the House will not refuse to give the measure a second reading.
  Motion agreed to.
  Bill read 2ª, and referred to a Select Committee.
  And, on March 6, the Lords following were named of the Select Committee:—

  Ld. Chancellor.

  Ld. Steward.

  E. Devon.

  E. Romney.

  V, Eversley.

  L. Cranworth.

  L. Saint Leonards.

  L. Wensleydale.

  L. Belper.

  L. Chelmsford.

  L. Kingsdown.

  L. Lyveden.

  House adjourned at half past Six o'clock, till Monday next, Eleven o'clock.