Sitting of 7 May 1862

COUNTY COURTS PROCEDURE BILL.

  SECOND READING.
  Order for Second Reading read.
  MR. M'MAHONsaid, he rose to move the second reading of the Bill. It consisted of eleven clauses only, embracing Amendments in the procedure of the County Courts which had been suggested by parties conversant with the practice in those courts, and which, if sanctioned by the Legislature, would greatly improve the administration of justice. His object was to assimilate the practice of the County Courts to that of the Superior Courts. One; of his Amendments was that the County Courts should have the power exercised by the Superior Courts of bringing third parties into court. Another had reference to the raising of questions of law by special case. By another he sought to extend to County Courts powers in regard to suits on Bills of Exchange already exercised with great advantage to suitors by the Superior Courts. The only provision to which he apprehended exception would be taken was that which gave an appeal from the decision of the Judge in cases where no such appeal now existed. At present the County Court Judges were as absolute as Turkish bashaws in all suits for sums under £20: and under £5 the party had no right even to ask the intervention of a jury, so that the opinion of a County Court Judge was in these cases absolute and final, both as to law and facts. The County Court Judges had also in certain cases a very extraordinary power of imprisonment for periods of thirty days, which might be repeated without at all diminishing the amount of the debt claimed. He did not propose to give an absolute right of appeal, but only in cases where the County Court Judge thought it right to allow an appeal. Another Amendment was to give the County Courts, as the higher courts had under the Common Law Procedure Act, power to entertain equitable defences. These were the main objects of the Bill, and he trusted the House would be of opinion that it was entitled to a second reading.
  Motion made, and Question proposed, "That the Bill be now read a second time."
  THE ATTORNEY GENERALsaid, he thought it would be inexpedient to pro-
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  ceed further with the Bill. The business and the form of procedure in the County Courts were of a peculiar character, and the Judges of those courts were the only persons fully qualified to decide how far it was expedient to change the state of the law under which their duties were at present administered. He had endeavoured to ascertain what were the opinions entertained by those Judges in reference to the clauses in the Bill of his hon. and learned Friend; and the result of his inquiries was that he had found that the County Court Judges in general disapproved of the changes proposed by that measure. No complaint had been made of the operation of the existing law, and there appeared to be no reason to suppose that any advantage would be gained by the contemplated alterations. The greater proportion of the clauses of the Bill were confessedly taken from the Common Law Procedure Acts of 1852 and 1854, and so far they might be made available without the intervention of Parliament. With regard to the highly penal clauses which were found in the County Courts Acts, and which enabled the Judges from time to time to impose imprisonment of a longer or shorter duration, without that imprisonment diminishing the debt, he would not now express any opinion as to the policy of the existing law. If they were to be considered in that House, they should be considered in a separate and distinct shape, without reference to general questions of County Court procedure. The interpleader jurisdiction given by one of the clauses the County Court Judges saw no necessity for, besides which it was opposed to that general view on which the County Courts were founded, and might entail considerable expense and inconvenience upon the litigants. The jurisdiction to entertain equitable defences was equally objectionable. It was rarely ever resorted to in the Superior Courts, and it was obviously inconvenient to refer questions of equity to courts constituted for wholly different purposes. It was found in practice that when such questions arose they were referred to the ordinary Courts of Equity, instead of the parties availing themselves of the powers conferred by the Common Law Procedure Act. The principle of the Bill was opposed to that of the County Courts Act, which was to withdraw from the Superior Courts, and so to exempt the parties from the expense and delay of prosecuting in those courts claims under a certain amount. If a

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  Bill were really called for, he thought the sixth clause was unobjectionable; and, if they should go into Committee, his conviction was that the Bill would be reduced to that clause. If that were so, it was not desirable to legislate piecemeal in, the matter. Probably there were some matters connected with the procedure of the County Courts that might advantageously obtain the consideration of the House, with a view to the amendment of the law. He had been in communication with some of the County Court Judges, and suggestions from such a source would receive the consideration to which under the circumstances they would be entitled. If the matter were thus originated, it would be easy enough to introduce a measure including the sixth clause, but it was not desirable to press the Bill before the House, and he should move that it be read a second time that day six months.
  Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."
  MR. HENLEYsaid, the remarks of the hon. and learned Attorney General induced him to ask the Government to turn its attention to the position in which the poorer classes were left in respect to imprisonment for debt. Recent legislation had had the effect of almost clearing our prisons of persons who had been incarcerated on account of having contracted large amounts of debt; while, on the other hand, the system of what he might call penal imprisonment was still continued against the humbler order of debtors, simply because a County Court Judge might be of opinion that they could pay if they liked. Parliament having, therefore, almost wholly abolished imprisonment for debt as affecting the upper and middle ranks of society, he wished the Government now to consider if it was fair or just to subject the poorer classes to confinement in gaol for debt pure and simple, while their families were, perhaps, left to starve in the mean time.
  MR. AYRTONsaid, that while the Bankruptcy Bill of last session was under discussion in that House, he had endeavoured to draw attention to the point just mentioned by the right hon. Member for Oxfordshire; but hon. Members were then so busy in amending the law to suit the convenience of their own class that they could not stop to consider its operation on the poorer classes. The present state of
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  things was monstrous. If a man could only contrive to incur a debt of £20, if he even could induce a friend to allow him to contract a debt to that amount, then although he might owe a hundred smaller sums, and although judgments might have been had against him for them, he could nevertheless relieve himself of them all by giving up the tables and chairs in his room. But if he were not fortunate to have a friend who would enable him to go through that process, then he remained under the County Courts' jurisdiction; and although he only owed a paltry debt of a few pounds, he might be sent to prison again and again for the space of two years. On the other hand, the man who ran into debt for thousands was furnished with the means of exonerating himself, and the Government sent round its officials to tell him not only that he could get out, but that he must get out of prison. It was a scandal to that House that there should be one law for the wealthy and another for the poor; and he trusted it would not be long before that scandal was removed.
  SIR GEORGE GREYsaid, there could be no doubt that the point to which the right hon. Gentleman (Mr. Henley) had called attention was well worthy of consideration, especially with reference to the change effected last year by the Bankruptcy Act. At the same time, he did not think that practically the poorer class of debtors were detained in prison for debt, but rather because, in the belief of the Judge, they had the means of paying, and refused to do so. But, without expressing a decided opinion on this matter, or pledging the Government to bring in a Bill upon it, he could say they were willing to consider it.
  MR. M'MAHONsaid, if they were to wait for the approval of the County Court Judges to any measure, there would never be any improvement of the law. Of all persons judges were the last to be consulted upon such subjects. If we had been guided by the opinions of Judges, we might still have been hanging women, with children at the breast, for stealing handkerchiefs worth 5s. If, therefore, the County Court Judges were to be consulted on the subject, preparatory to the introduction of a measure, no Bill would be brought in at all, because those learned gentlemen would naturally be opposed to any disturbance of the settled state of things to which they were accustomed. As regarded imprisonment for debt, the same law should apply

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  to the County Courts as applied to the Superior Courts. He did not anticipate that the subject would have been discussed, or he would have been prepared with returns showing the magnitude of the evil. To show how severely it operated on the poor, however, he might state that the gaols of Worcester and Stafford were filled with persons committed at the suit of pedlars, who were in the habit of going about the country, and inducing labourers' wives to purchase trinkets and other articles for which their husbands could never afford to pay. In the gaols in question there were, a short time ago, as many as 300 persons committed at the suit of one such firm. Again, he did not see why County Court Judges could not administer a "rough equity" as well as they now administered a "rough law."
  MR. VANCEsaid, that by what he believed to be an oversight a clause had been inserted in the Bankruptcy Bill of last Session which repealed a prevision that had previously been in force, to the effect that County Court Judges should not be allowed to sit in that House. It appeared to him that that prohibition was a, very proper one, and he hoped that some means would be taken to renew it.
  Question, "That the word 'now' stand part of the Question," put, and negatived.
  Words added.
  Main Question, as amended, put, and agreed to.
  Bill put off for three months.

PUBLIC HOUSES (SCOTLAND) ACTS AMENDMENT BILL.

  COMMITTEE.
  Order for Committee read.
  Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."
  MR. CRAUFURDsaid, he rose to move the following Resolution:—
  "That, in the opinion of this House, it is not expedient to sanction any further Legislation on the subject of Public Houses in Scotland which does not consolidate as well as amend the present Acts."
  The promoters of the Bill were not justified in asking for further legislation on the subject, before they clearly stated what they required the House to do. There were several Acts in force re relating to public-houses in Scotland, and the whole of the law ought to be consolidated, for it was almost impossible to con-
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  strue the meaning of the clauses in several Acts of Parliament. It was the duty of the House to take care that their legislation should be clear, so that the magistrates in Scotland might be enabled to understand the law and properly enforce it. The Bill would in its then shape introduce nothing but confusion. As an instance, he might mention that he (Mr. Craufurd) was of opinion that it repealed a certain proviso in the Forbes-Mackeuzie Act. His hon. and learned Friend (Mr. Mure) said it did not. In that way, then, were two lawyers differing on a particular point; and if they did so, how was it likely that people not learned in the law would be able to construe it satisfactorily. As there was plenty of time left to reconsider the Bill during the Session, ho would suggest that it should be postponed for a week or two, and he would most willingly lend a helping hand to amend the Bill if the hon. and learned Gentleman who had the conduct of it would permit him to do so. But he should be glad to know why the learned Lord Advocate had not undertaken the task of framing a Bill on the subject, instead of leaving the work to an independent Member? Was the Report of a Royal Commission, he would ask, to remain a dead letter? The Government ought to introduce a measure which would do honour to them and be beneficial to the whole of Scotland.
  MR. BUCHANANseconded the Resolution.
  Amendment proposed,
  To leave out from the word "That" to the end of the Question, in order to add the words "in the opinion of this House, it is not expedient to sanction any further Legislation on the subject of Public Houses in Scotland which does not consolidate as well as amend the present Acts,"
  —instead thereof.
  MR. MUREsaid, he was convinced that the hon. and learned Member did not wish merely to obstruct the passage of the measure; but the effect of his Resolution, if carried, would be to prevent any legislation upon this subject during the present Session. The Bill was founded upon the recommendations of the Royal Commissioners, who had made no suggestion of consolidation. The Select Committee of last Session had been equally silent upon that point. The measure was one generally approved in Scotland, and calculated to do much good; and having regard to the period of the Session, and the difficulty of a private Member obtaining a day or night for

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  making progress with a measure, he would not consent to postpone this Bill. The Bill had been printed and in the hands of hon. Members since the 7th April, and therefore he hoped the House would go into Committee and proceed with the consideration of the Amendments on the paper without further delay.
  MR. BUCHANANsaid, he thought there was a general admission that consolidation of the laws relating to public houses in Scotland was desirable, if there were only time to carry it out during the Session. He could not help thinking, that if there were not time enough to attain so desirable an object, it was the fault of those who were in charge of the Bill, for some weeks ago he had given notice of his opinions as to the necessity of consolidation —opinions which were shared by many, if not by most, of the Scottish Members. The subject had been discussed in the Select Committee; and although no recommendation had been made, yet the individual members of that Committee had expressed strong opinions concerning it. He wondered, indeed, that such a piece of patchwork in legislation should have been offered to the consideration of the House. Instead of having a clear and lucid state of the law it was proposed that there should be three Acts of Parliament on the subject; and considering the position of the persons who would be most affected by the provisions of the Bill, it would be impossible to expect them to peruse and understand the law, indeed, it could hardly be expected that the justices of the peace who would have to administer the law, but who were not lawyers, should be able to properly construe several Acts of Parliament on the same subject. As one week or two was all that was required to consolidate the law, there would be no danger of the Bill not being passed into law during the Session if that short time was allowed by the promoters of the Bill. He was not unfriendly to legislation on the subject. He wished for an improvement of the present law, but he should like it in the shape of a consolidation of the existing Acts.
  MAJOR HAMILTONobserved, that he did not think that the Justices of the Peace were any the worse for not being lawyers. He quite agreed that consolidation was desirable; but if the effect of adopting the Resolution of the hon. and learned Member for Ayr would be to throw over the Bill from this Session, he could not support it. There had been a general expression of
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  opinion in Scotland in favour of passing the Bill in the present Session, and therefore he hoped the House would proceed to discuss the clauses in Committee.
  MR. LESLIEsaid, the Royal Commission appointed in 1859 sat at ten different places, and took evidence in open court. The evidence so taken was published from day to day in the local papers, and thus all Scotland was made acquainted with the action of the Commissioners. The result of an investigation so conducted had been to silence the clamour that had arisen against the Forbes-Mackenzie Act. The Report of the Commissioners was based upon the evidence, and thus it might be taken as an echo of the general opinion in Scotland. The Commissioners individually might have thought consolidation would be an advantage, but it was not within their province to make any recommendation upon that point. He approved of consolidation; but as delay would be fatal to the passing of the Bill during the Session, he hoped the House would proceed with it, and consider the subject of consolidation in the next Session. The Bill itself was not intended to increase restriction, but was a defensive measure to enable a majority of the people of Scotland to protect themselves against the iniquities which were the results of intemperance.
  MR. W. EWARTsaid, he fully admitted the advantages of consolidation, but as he believed the Bill to be a good one, the question with him was whether, if postponed, there would be a chance of losing it altogether. It was well known that there was great danger from delaying Bills in the hands of private Members. He should therefore vote for going into Committee, on the understanding that a consolidation of the law would be attempted next Session.
  THE LORD ADVOCATEsaid, he also would admit the convenience which would result from consolidation, but there was always a difficulty in combining new legislation with a consolidation of the existing law. If they had to go over the Forbes-Mackenzie Act again, there would be no chance of passing any Bill on the subject in the Session; and that being so, it would be better to defer the work of consolidation for another year.
  SIR EDWARD COLEBROOKEsaid, he was willing that they should go into Committee, on the understanding that the Consolidation Bill should be submitted to them subsequently.
  MR. BASSintimated, that according to his opinion the clauses only that were indispensable should be passed, and that they should go no further.
  MR. DALGLISHsaid, he wished to know whether the hon. and learned Member for Bute (Mr. Mure), who had charge of the present measure, was prepared to give a pledge, that if it were passed this Session, he would next year bring forward a Consolidation Bill.
  MR. BLACKBURNsaid, it would be a very unusual proceeding to exact a promise from a private Member of the House that he would introduce a particular Bill in the course of another Session.
  Question, "That the words proposed to be left out stand part of the Question," put, and agreed to.
  Main Question put, and agreed to.
  House in Committee.
  Clause 1 (Regulating Period for granting Certificates).
  MR. DALGLISHsaid, he would move the addition of words, providing that all appeals from the decisions of the Magistrates and Justices should, from and after the passing of the Act, be taken to the Sheriff of the county.
  MR. MUREsaid, that the opinion of the Royal Commissioners was against the appointment of the sheriff as an appeal judge in these cases. Their report recommended that a selection should be made from the justices, who should be chosen by their own body to act as a court of appeal. The granting of licences was not exactly the kind of cases which a sheriff was best able to determine, for the question involved was not one of law, but of discretion.
  MR. CRAUFURDsaid, he thought it highly desirable that the appellate jurisdiction, as embodied in the clause, should be altered; and although the sheriff might not be the best possible person to determine such appeals, yet there was no doubt that, being the equivalent in Scotland of a stipendiary magistrate, he was in a perfectly independent position, and would not be subjected to any canvassing, while, from his legal knowledge, he was more fitted to interpret Acts of Parliament than the ordinary magistrates.
  THE LORD ADVOCATE, as an abstract question, was entirely in favour of the Amendment. There was no doubt that every care ought to be taken to pre-
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  vent an appeal being determined by the same magistrates who had determined the question in the court below; but, perhaps, the object which they all had in view would be better served by leaving appeals to be determined by a general committee of magistrates, appointed by the magistrates themselves.
  MR. BLACKBURNsaid, that the sheriff had been described as the local stipendiary magistrate in Scotland. But in England no one thought of giving an appeal to the stipendiary magistrate from the justices, and why should a different practice prevail in Scotland?
  MR. MUREsaid, that the sheriff in many instances was a member of the licensing court, and therefore an appeal to the sheriff would be in those cases an appeal from the sheriff to the sheriff.
  MR. BUCHANANsaid, it appeared to him that it was not desirable to impose upon the sheriff the petty task of inquiring into the expediency of licensing a public-house in any particular district. The best mode of dealing with the subject would be, in his opinion, to give the appeal from the justices who had already decided upon an application for a licence to some select committee of their body.
  MR. CAIRDsaid, he thought it would be a great mistake to make the stipendiary magistrate superior to the other magistrates upon, not a legal question, but a social arrangement.
  MR. BAXTERsaid, he believed the general opinion of the Committee was, that the appeal should be to a committee of the justices named by themselves. He hoped that the hon. and learned Gentleman who had charge of the Bill would introduce some provision into the Bill which would give effect to that view of the matter.
  MR. MUREsaid, he would endeavour to frame a clause to that effect.
  MR. DALGLISHthen said, he would not press his Amendment.
  Amendment, by leave, withdrawn.
  Clause ordered to stand part of the Bill.
  Clause 2 (Forms of Certificates).
  MR. CRAUFURDmoved a proviso, enabling any retail dealer, who was also a wholesale dealer, to send out on permit the articles specified in his certificates at other hours than were specified in his certificates. It would be a hardship if the wholesale dealer were prevented from sending out two gallons or a puncheon of whisky to his country customers, except in the hours

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  during which a retail dealer was allowed to open.
  MR. MUREsaid, that if a wholesale dealer, who was also a retail dealer, were allowed to open at any hour for the supply of his wholesale customers a wide door would he open to abuse.
  MAJOR HAMILTONsaid, there were two points involved. One was, that without the addition it would be impossible for those living at small distances from country towns to get liquors at the same time that they got their other provisions, and to have them delivered by the same vehicles. The other point was, that the proposed change would affect the present law against the opening of public-houses for retail purposes before eight o'clock in the morning. He must say that a greater boon could not be conferred on Scotland, because the working man would not now be able to procure spirits before eight o'clock in the morning.
  Amendment negatived.
  Clause agreed to, as were also Clauses 3 to 5 inclusive.
  Clause 6 (Chief Magistrate or Justices on special Occasions may grant Permission to keep open during particular Times).
  MR. PEELmoved additional words, providing that nothing contained in the clause "should authorize the sale of any exciseable liquor, at any place not specified in an Excise licence, granted in that behalf."
  Clause, as amended, agreed to; as was also Clause 7.
  Clause 8 (Form of Applications for Certificates).
  SIR EDWARD COLEBROOKEsaid, he wished to insert, after the word "annexed," the following proviso:—
  "That the Justices in quarter sessions, to whom any appeal shall be made from a deliverance, granting or refusing, or otherwise disposing of any application for a certificate, may by themselves or any one or more of their number inspect the premises for which a certificate is applied, and make the said report."
  Proviso agreed to.
  MR. CRUM-EWINGsaid, he begged to move the addition of another proviso, requiring—
  "The town clerks of those Parliamentary burghs, the magistrates of which were not authorized to grant certificates, to pay to the clerks of the peace of their counties two-thirds of the fees received by them in respect of licences during the time such clerk of the peace shall continue to hold office."
  Proviso, by leave, withdrawn. Clause agreed to.
  Clause 9 omitted.
  Clauses 10 to 12 inclusive, agreed to.
  Clause 13 (Power to Constables to enter Eating-houses, &c., and Penalty for Obstructing them).
  MR. CRAUFURDsaid, he must insist that licensed victuallers and hotel-keepers ought to be placed on the same footing, and that the police ought not to be allowed to enter the premises of the one more than of the other, unless they had reason to believe that a breach of certificate was being committed. He would therefore move the insertion of the words, "in which he has reason to believe a breach of certificate is being committed," in order to place both upon the same footing.
  Amendment proposed,
  In page 7, line 39, after the word "situated," to insert the words "in which he has reason to believe a breach of certificate is being committed."
  MR. MUREsaid, that the clause was founded on the recommendation of the Commissioners, who had considered the point very carefully.
  Question put, "That those words be there inserted."
  The Committee divided:—Ayes 23; Noes 109: Majority 86.
  Clause agreed to; as were also Clauses 14 to 18 inclusive.
  Clause 19 (Persons found in Shebeens may be taken into Custody).
  MR. BUCHANANsaid, he thought the clause should be more definite. If a man were to entertain, his friends in his own house, and any of them were to leave in an intoxicated state, which, perhaps, was not so uncommon, the penalty would be incurred. He objected to a house being ticketed by a policeman a shebeen "from habit and repute."
  MR. DUNLOPsaid, he trusted that intoxication in private houses was not so common as the hon. Member talked of. At any rate, "habit and repute" could not be proved from one or two isolated occurrences.
  Clause agreed to; as were also Clauses 20 to 22 inclusive.
  Clause 23 (Persons found intoxicated and incapable of taking care of themselves guilty of an Offence).
  MR. BUCHANANsaid, he objected to the provision rendering any person found intoxicated in a public-house liable to be

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  taken into custody by the police. The clause was quite unnecessary.
  MR. MUREdefended the clause.
  MR. E. BLLICE (Kilmarnock)said, he thought the clause a very valuable one.
  Clause, as amended, agreed to.
  Clauses 24 to 32 inclusive, agreed to.
  Clause 33 (Form of Review provided).
  SIR EDWARD COLEBROOKEmoved an Amendment requiring the appellant to deposit with the clerk of the justices the amount of the penalty and costs awarded against him.
  Amendment negatived.
  House resumed.
  Committee report Progress; to sit again on Friday.
  House adjourned at five minutes before Six o'clock.