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The second question is more open to doubt; for whilst on the one hand I have had several bad cases of perjury committed by parties to the cause, I have, on the other hand, good reason to believe that suborned perjury is much rarer in the County Court than in the Superior Courts; and I am disposed to agree with Mr. Amos, that in practice the new law tends more to the suppression of suborned perjury, from the fear which the professional swearer has of being confronted with the party, who necessarily has better knowledge of the facts, than to the encouragemt of perjury in the parties themselves.
Being thus of opinion that the examination upon oath of parties to the cause is highly instrumental in the discovery of truth and the furtherance of justice, whilst it is at all events extremely doubtful whether it increases perjury, I am inclined to recommend its adoption in proceedings before the Superior Courts. I am, Sir, your most obedient servant, J. M. HERBERT.
Arthur Symonds, Esq.
Circuit No. 25.
53, Upper Bedford Place, 17th January, 1851. SIR,-I regret that I have not been able to give an earlier answer to the inquiry made by you at the request of the Council of the Society for promoting the Amendment of the Law, as to whether in my judgment the law which enables parties to be examined as witnesses in the County Courts has worked well or ill. In my judgment it has worked well. I think it peculiarly adapted to the business of the County Courts, where trials by jury are of rare occurrence, and the evidence is considered by a lawyer of experience, accustomed to weigh and judge of the effect of evidence, and to make all proper allowance for the bias of parties witnesses for themselves. I confess, however, I do not feel so confident that it would conduce to the advancement of the ends of justice, if adopted in courts where all issues of fact are decided by juries. I mention this because I have not felt quite satisfied with the operation of the law in jury cases. I should add, however, that these cases have been so few, compared with the great mass of the business of my courts, that I do not feel competent to give a decided opinion upon the subject. I am, Sir, your obedient servant, Arthur Symonds, Esq., Hon. Sec., N. R. CLARKE. &c. &c. &c.
Circuit No. 26.
Hanley, 19th December, 1850. SIR,-In answer to your inquiry, I beg to state that in my judgment the law which enables parties to be examined as witnesses in the County Court has worked well, and I may add that in 99 cases of 100, if such had not been admitted, a total failure of justice would have ensued. I am, Sir, your obedient servant, R. G. TEMPLE, County Courts Judge, Circuit No. 26. To be continued.
HOUSE OF LORDS.
COUNTY COURTS EXTENSION ACT.
THURSDAY, April 2.-On the motion for going into committee on this bill, The LORD CHANCELLOR said he had several objections to make to the bill in its present form, as he believed that the law did not require the alterations which the bill proposed to make. The first series of clauses provided that if parties should agree to try any matter, whether in law or equity, before a judge of the County Courts, the judge should be empowered to hear the cause. Now, in the first place, he would be glad to know, before they proceeded to impose any further obligations on the County Court judges, how far their time was occupied by their present duties; and he thought such an inquiry was the more necessary since the Legislature had extended the jurisdiction of these courts to 50%. There was another clause in the same series which gave parties the power, if they agreed, to have any matter, however special, tried before these judges, by way of reference. Now, as this clause stood at present, the effect of it would be, under the pretext of facilitating arbitration, to give the judges of County Courts power, with consent of parties, to try any cause whatever. No matter how important or complicated the question, the multitude of witnesses, the contradictory nature of the evidence, the question might be tried and settled by one of these judges of the County Courts. He saw no reason for these clauses relating to arbitration, however they might be guarded from the consequences he had alluded to. The law had already given every facility for arbitration, and there was no necessity for these new enactments. The next series of clauses related to the establishment of courts of reconcilement. He had a great respect for the experience of his noble and learned friend,
but he must own it did not appear that these courts were suited to the genius and habits of the people of this country. It was proposed in these enactments that if one party proposed to be reconciled, he must summon the opposing party before the judge of reconcilement, who must then give notice whether he meant to appear or not. If he gave notice that he would appear, and did not, he would be liable to the costs. If he did appear, the parties were then to go without attorney or adviser of any kind before the judge, and state before him their respective differences, and if the judge was not able to reconcile them a certificate was to be given to that effect, and then the case was to be tried before another tribunal. Now he did not see what end such a proceeding was to serve, except in enabling a cunning party to get a knowledge of his opponent's case-to see what evidence he had to bring forward, and how it might be best met; after which nothing would be easier than to find out some reason for not being reconciled, and then going to law. But did the people of this country require a court of reconcilement? He was satisfied they did not. The utmost that could be said for such a measure was, that it would do no harm; but he did not think the dignity of the Legislature was best consulted by enacting laws which were to be of no practical use. He did not think there was any difficulty in people becoming reconciled, if they had a disposition to be reconciled; and he certainly did not think that the present state of society in this country required such laws as these. The next series of clauses dealt with equitable rights, and he must say it did not occur to him that it was desirable to graft the proceedings of the courts of equity upon the practice of these courts. All that was practicable in these clauses, appeared to him to be already provided for in the existing act; which provided that anything in a case which was incidental to equity practice might be done by the judge of the County Court, under the authority of the Master in Chancery, and subject to all the rules and regulations which applied to the officers of that court. If more than this were required, it would be better to introduce it as part of a general There was another system, rather than in this incidental manner. clause which provided that a clerk to an attorney of six months standing might appear in these courts and advocate the cause of his client. Now he would appeal to his noble and learned friend whether it would be possible to enact a greater nuisance than this clause threatened to be. It was constantly happening that certain parties who were not attorneys, but who pretended to be clerks of attorneys, and who allowed a low grade of attorneys a portion of their earnings for the use of their names, haunted the different noble and learned friend to conceive. Their lordships could not courts, and produced mischief which it was hardly possible for his fail to have read several cases mentioned in the newspapers of about for a counsel to defend them, but finding none; and when prisoners being brought to the bar of a criminal court, looking the case came to be afterwards inquired into, it was found that they had been deceived by persons who pretended to be clerks of attorneys, and who had engaged to provide counsel for them, and after squeezing as much as they could out of the poor creatures or their families, in order to fee a counsel, had left them to take care of themselves. Besides, in the course of civil actions, the most nefarious practices frequently took place from the same cause. Of all the evils which they were bound to repress, and to punish with severity, he thought this was the most crying, but he feared the present clause would rather encourage the nuisance. What sort of a case must that be about which a man would go to an attorney, and which a six-months' clerk of the attorney would be sufficient to defend? A man went to an attorney in the hope of getting the benefit of his experience, but if he only obtained the services of a six-months' clerk, he did not think that would much benefit him. He therefore hoped, on all these grounds, that his noble and learned friend would reconsider the clause with a view to strike it out of the bill. There was another clause to which he had a strong objection, in fact producing a total alteration in the present law-he meant the clause relating to the recovery of the tithe-rent charge, which, from some influence or other, had been very adroitly palmed off upon his noble and learned friend, and by him inserted in the bill. At present the power of recovering the tithe commutation rent was by distress on the premises, but unless there was property on the premises there could be no remedy. The consequence of which was, that if a farm was unproductive, if it produced no titheable articles, then the titheowner had no remedy. But, on the ground that some clergymen had a delicacy in enforcing the law of distress, a clause was introduced into this bill which would give the clergyman power to summon the occupier of the farm into the County Court, and failing to pay, he would be sent to prison. Now, this was altering the entire law upon the subject of tithes, and it was not even pretended that any amount of tithe was lost under the existing law, but simply that it hurt the feelings of some clergymen to proceed by way of distress. He was satisfied that the attention of his noble and learned friend had not been called to the present state of the law on this subject, or he never would have sanctioned such a course. He concluded by moving that the House go into committee on the bill that day six months.
Lord BROUGHAM thought he had a great right to complain of
the course which his noble and learned friend had taken. If he had given him the slightest indication-the remotest hint-he would not have brought forward the bill at that time, but would have postponed it till to-morrow. There was not one single objection which his noble friend had stated to these clauses which was not one of detail, and which might not have been taken in committee, and, however inconvenient to himself and to their lordships he was now driven to follow every one of the arguments-as he thought, inconclusive arguments-which the noble lord had urged against the bill. And with reference to the equity clauses, his noble and learned friend said, "What is the use of these clauses, since they are all contained in the 27th section of the Act of 1846" Now he would show that his noble and learned friend was entirely and absolutely mistaken, and that the mistake was as great as it was possible for any person to commit upon the subject. | These equity clauses were not now proposed for the first time: they were in the bill of 1833. That bill underwent a most full and deliberate discussion. These clauses were canvassed, altered, amended, and varied; and when the bill was ultimately thrown out, they were lost with it. When Lord Cottenham adopted Lord Lyndhurst's Act of 1846, upon the retirement from office of that noble lord, he found the equity clauses were not in the act. He was so pressed by the noble lord the Master of the Rolls to insert them, that, after some hesitation, he yielded, and these were the clauses which Lord Cottenham agreed to. His noble and learned friend, who had been for fifteen years a judge of that court, and twenty-five years a practitioner in it, was so impressed with the necessity for their adoption, that he came down here the other night to support them. Owing to the inconvenient course adopted by his noble friend on the woolsack he was deprived of his assistance. The Lord CHANCELLOR was very sorry to occasion any inconvenience to the noble lord. He did not mean to act unfairly by him, in withholding notice of his opposition. What he now wished to propose was, that he should withdraw his motion, and that the discussion be taken upon the third reading. He did not wish to take the noble lord by surprise.
Lord BROUGHAM never meant to complain of any unfairness. If the noble lord had done anything like that which was unfair, it would have been the first he had ever known him to have done during a very long intercourse of years. The noble lord was equally wrong in saying that he had taken him by surprise. All he complained of was, the inconvenience of the course adopted. He could not now refrain from saying something. The conduct of the noble lord forced him to make some statement of the facts. He should not occupy, however, much time. He would deal with the cargo, he said it with all respect-of his noble friend's arguments by way of sample; he would not break bulk by doing more; and only dealing with them in this manner he would show how very incorrectly, how absolutely without foundation, how entirely futile the objections of his noble friend were. With respect to these equity clauses, he had already stated that his noble friend the Master of the Rolls came down the other night to bear his testimony to their value. He had told him what passed in the year 1846; he stated how desirous he was that they should be inserted: how, after great delay and trouble, these clauses were selected out of a number of others, as the only ones which Lord Cottenham would adopt and approve of. And these were the clauses which were now before their lordships, which his noble and learned friend designated as being unapproved of and unsanctioned. This would be something to show the gross error, the very gross error, which the noble lord on the woolsack had fallen into-a gross error which it was more extraordinary should have been committed by his noble friend, considering the short time the noble lord had been in the Court of Chancery-long might he there flourish, that it might benefit from his talents, learning, and his unexampled assiduity; but considering the short time he had been in that court-he would not say as a postulant, but as a practitioner-the noble lord had not been enabled to see the advantages of these clauses or the greatness of the error he had committed in opposing them. One thing, he was sure, would be admitted, that Lord Cottenham understood that court, and that forty years' practice as counsel had acquainted him with the practice of that court. Lord Langdale pressed upon Lord Cottenham the adoption of these equitable clauses in the bill of 1833. By the ultimate rejection of that bill they were lost; and they were now again before the house. Lord Langdale could only obtain the consent of Lord Cottenham to a very small portion of the clauses he proposed, and it was to that portion for which assent was obtained that he now directed the attention of the house. When the noble lord on the woolsack said that these equity clauses were contained in the 26th section, he on the contrary, said they were not. There was nothing like them in that section, there was only one small infinitesimal portion of them contained in it. The object of these equity clauses was to give to the County Court judges the same powers as were now vested in the hands of the Masters of the Court of Chancery. Nothing was clearer, and all those who knew anything of the Court of Chancery admitted that those clauses were an improvement on the practice of that court. They were most carefully preparedthe noble and learned lord shakes his head-but he could assure
him that these clauses were most carefully prepared, and were not the undigested suggestions of different parties thrown together in a heap. They were carefully prepared first in 1833; then they went through the committee of the same year, where they had the benefit of the alterations and amendments of Lords Eldon and Lyndhurst. Since that period they had undergone further revision. They had been before the Equity practitioners here; they had been before Masters in Chancery who had made in them improvements and amendments. He himself, as well as his noble and learned friend the Master of the Rolls, gave them further revision; and he even thought that his noble and learned friend opposite saw them (Lord Cranworth bowed assent.) Practical suggestions had been adopted, and there was no doubt that the bill was now improved by being rendered more compendious. He had communication with all the County Court judges. He had received their suggestions, as it was his bounden duty to do, and he had added several clauses to the bill, profiting by their experience in the actual working of the County Court system. Then, with regard to permitting a tithe rent-charge to be a ground of summons before a County Court judge. It is a very hard thing to go without your tithe, or to be obliged to have recourse to restraint; the consequence of this state of things is, that the parson not unfrequently is defrauded by the dishonest man. The noble and learned lord said that there was no ground for a distress for tithes if there was no titheable matter on the ground; so that this provision would alter the whole law. That was certainly a very curious objection and a curious doctrine. What tithe is produced by a horse, by chairs and tables, by carts or household furniture, and yet they were all subject to distress for non-payment of tithe. It was, therefore, vain to produce such an argument; and there was no harm in giving a right to the tithe-owner to recover his tithes, which, he had heard, were better paid to the lay impro priator than to the parson. With reference to the courts of arbitration, the noble and learned lord did not take the same view as he did. The course at present respecting arbitration is this: after all the expenses of a contest in a court of law have been incurred, and when the matter has come into court, it is then found that the dispute is one which cannot be settled in public; perhaps it is a matter of account, and the parties are forced, are compelled to go before an arbitrator. What follows? The expenses have all been already incurred. The arbitrator is careless about the matter, so are the solicitors. The case is adjourned from day to day, no one is interested in the issue, save the parties themselves, and a week or ten days elapses before a result is arrived at. Every one was aware that if they appointed a paid arbitrator, a gentleman of abilities and learning, things would be managed in a much more satisfactory manner. As to the courts of reconcilement, the noble and learned lord thought it was a mere visionary scheme, and that there was nothing practical in it. Why, it is the practice of more than one-half of Europe. He had received that very day, in addition to the letters which he had already read to their lordships, the testimony of a learned gentleman of great authority, who was connected with the Government of the late lamented King of the French. That learned person gave additional testimony to the great benefits which were received in France from the establishment of these courts. He states that more than one half the cases which go before the judges of the courts of reconcilement are settled by the judge. In France no person is bound to tell his case, neither would he be in this country. He would not be bound to appear, even if he did not desire it. But would it not be advisable for a judge to say, "You have no defence, or you have no case," after hearing the parties-if the facts warranted such a conclusion? The advice thus given would be acted upon, and a vast amount of litigation would be put an end to. With respect to the optional jurisdiction clauses, the objection to the inconve nience of bringing witnesses from a remote distance equally prevailed at present. As the law now stood, if the action was not local, but transitory, you may bring your action anywhere you please, and it was constantly the practice to try a case in London, where the witnesses have been brought from Cornwall. He should abstain upon the present occasion from further comment on the objections urged against the measure, only observing that there was not one to those objections which he was not prepared to meet, and to give each and every one of them a perfectly satisfactory answer. One word more before he sat down. That portion of the bill respecting the practising of clerks was inserted from this reason. Respectable solicitors and attorneys would not attend these courts; the result was that the business would fall into the hands of an inferior class of practitioners, and it was thought that if solicitors were enabled to send a managing clerk, they would have a check and control over the class of men who sought to appear before the court as agents. The motion of his noble and learned friend might have the effect of preventing for seventeen years the public from receiving the beneficial effects of this measure. He would console himself, however, by the words of Lord Bacon, which had been adopted by Coke," no good proposal for the amendment of the law is altogether lost." Whatever may be the delay in its adoption, whatever opposition it may meet with, whether from prejudice, or ignorance, or indeed from both, nevertheless in the end it is sure to
produce its appointed fruit in good season. It may have been delayed, to the injury of the community, and to the benefit of that class whose benefit they ought never to consult-the benefit of the unjust debtor, creditor, or lawyer, whose interest it is to keep the law in its imperfect state. It was a fact that 500,000 cases had been determined by the County Court Act, 490,000 of which would never have been tried but for the beneficial effect of that act, and the noble and learned lord might now deprive the public of the further beneficial effects of the present act; but he might rely upon it that when they were both passed away the principle for which he (Lord Brougham) now contended would be received and adopted.
The LORD CHANCELLOR: After the very strong speech of my noble friend, various parts of which were very strong indeed, although I cannot say that the arguments were strong, I beg leave to withdraw my motion, and move that the bill be recommitted, with a view to have the amendments printed.
Lord BROUGHAM was quite willing to have the matter decided then there was no necessity for an adjournment.
Lord BEAUMONT considered that the noble lord would not lose by an adjournment. He (Lord Beaumont) differed from his noble and learned friend on the woolsack on many points, while, on the other hand, he did not entirely approve of the bill; and being anxious to express his opinions on the subject, he hoped that the debate would be adjourned.
Lord BROUGHAM: Till to-morrow. Lord CRANWORTH suggested that if it were till Monday, the Lord Chief Justice would be able to attend. Lord BROUGHAM said, if the debate was to be adjourned so long it would be convenient to have the bill committed pro forma, in order to introduce the amendments he had to propose, and which were rather numerous, owing to the many suggestions he had received from the learned judges and others. For instance, he intended to omit the clause allowing two judges on circuit to sit as judges under the provisions of this bill. If the bill went into committee pro forma, these amendments could be made, and the bill, as amended, be printed by the time it came to be discussed again.
Lord BEAUMONT remarked that his noble friend could now give notice of his amendments.
Lord BROUGHAM said they extended to a great part of the bill; not on account of any want of care in the preparation of it, but by reason of the many communications he had received.
The LORD CHANCELLOR said he thought the course suggested by his noble and learned friend was the most convenient. The bill was accordingly committed pro formâ. MONDAY, April 7.-Lord BEAUMONT said he saw that the County Courts Extension Bill stood for recommitment to-morrow; and after what took place on a former night, it was only fair that they should know what course was intended to be adopted by those who opposed the bill. He would therefore ask the noble lord (the Lord Chancellor), who was its chief opponent, what course he intended to pursue. If he intended to repeat the course which he took the other evening, it was proper that their lordships should be aware of it; if he intended, on the other hand, to object in committee to any important portion of the bill, they should be aware of the nature of the amendments which he intended to make. He (Lord Beaumont) was favourable to the principle of the bill, but there were some parts of it which he would willingly see removed. If it were allowed to go into committee, while he supported its main principles, he should move the rejection of the reconcilement clauses, and also of clause 35.
The LORD CHANCELLOR said he should move several amendments to the bill in committee, with a view to give to the bill the effect which he believed it was the intention of the framers to give it. He should, in common with the noble Lord (lord Beaumont), submit that the reconcilement clauses be omitted, and also the arbitration clause. With respect to the equity jurisdiction clause, he had intended for some time to introduce a measure upon that subject, and he should submit to the house whether it was not better to treat it separately than allow it to form part of this bill. Lord BEAUMONT thought the noble and learned lord objected to every portion of the bill. He objected to a portion of the business of the Court of Chancery being transferred to the County Courts. Now, that was the very point which the country wanted.
Lord BROUGHAM thought this clause had better not form part of any other measure, but that they ought to make sure of it at present, as any long delay might be inconvenient.
TUESDAY, April 8.-Lord BROUGHAM, before the house went into committee upon this subject, wished to make one or two remarks, which, he thought, would expedite the discussion in the committee. The object of the bill was to increase and extend the jurisdiction of county court judges; but he did not apprehend that it was to cause any great increase in the number of those judges, or in the amount of money paid to them as salaries. The county court judges at present in existence, according to the average of the last two years, were occupied, in court and in travelling, 157 days per annum, or, deducting Sundays, less than half a year. Now, if they were to sit a little more, they would surely be able
to get through a greater amount of work. Three months in the course of the year would be abundant time for relaxation, and the additional three months might be devoted to the business of the courts. Thus, he thought, no great increase would be required, except in the metropolitan districts, and in one or two other places. But a fund already existed out of which the additional judges could be paid, seeing that a surplus of 30,000l. was paid into the Treasury from County Courts.
The house then went into committee.
The LORD CHANCELLOR said he was most willing to assist his learned coadjutor in all those attempts at reform which, much to the benefit of the country, he was constantly making in the law of the country but he certainly did not approve of hasty legisla tion. Of all the courts, probably, those which had been most the subject of comment, and the most obnoxious, were the courts of equity. Now, in the present bill there were a series of clauses which might be divided into two parts. The first of them was addressed to the subject of referring certain accounts and inquiries to the judges of the county courts; the other class was directed to giving jurisdiction to the county court judge to take examinations of witnesses in certain cases. Now his learned friend (Lord Brougham) had met any objection which might be supposed to arise either as to the increase of duties, or a want of sufficient judicial power; and he (the Lord Chancellor) thought it would be exceedingly dishonourable if in this country there should be any disinclination to apply the public funds to the administration of justice; and above all, with respect to a class of persons who were unable to pay for it in the higher courts. Now at present the cases before the county court judges did not require any first-rate talent. Ninety-nine out of 100 of the cases could be disposed of in a few seconds, being trifling amounts of a few shillings, or now and then 17. due to the butcher, baker, or milkman. It would be a waste of money to have talent of great distinction in such cases. But when their functions were extended to matters of much more importance, so as to embrace questions which had a general application, relating to contracts, &c., where uniformity in the law was of the utmost consequence, it was important to ascertain what was the nature of the court and tribunal. He considered that it would be found in a few years that such a bill as this would inflict the greatest nuisance on the country. They would be imposing upon county court judges duties which they would be wholly incompetent to perform. It was proposed, not with the assent of the court, but that the parties should have the power of referring certain inquiries and certain accounts. Well, suppose that was done. Lord BROUGHAM.-It is only with the assent of the court. The LORD CHANCELLOR said, he heard it said the other night, that these clauses had been administered in a former bill. Now, by the bill of 1833, where parties desired to have such a reference, the case went to the Master for him to report if it was expedient and for the benefit of the parties, and if so, the reference was ordered. But by the present measure, the effect of that law was most materially altered. The County Court judges had been selected with the view of exercising a limited jurisdiction, and certain gentlemen had been appointed to perform those duties at salaries of 1,000l. a year. He mentioned the amount of salary, because it would be seen that, although extraordinary exceptions might be met with, they were not gentlemen who had had much experience, or whose prospects were bright or promising, thus to retire upon that moderate income. They were, however, chosen to perform certain duties, which duties were now about to be changed, extended, and made much more onerous, requiring more learning and experience. That was not a wise course. He should be glad to know if his learned friend had still held the Great Seal, how many of those County Court judges he would have appointed Masters in Chancery? Now, by this bill, he was to all intents and purposes going to make them Masters in Chancery; for the duties which they would have to perform required all the experience, learning, and intelligence, necessary to qualify a man for such an office. Many of the present County Court judges had been judges of little local courts, who were recommended at the time to the Great Seal, but not with reference to the performance of such duties as it was now proposed to impose upon them. Most of them would be unfit for it; he need not say all, because there was one gentleman of experience, whose name would at once suggest itself to his noble friend. But those sixty men were now to plunge into business without the slightest experience of their duties. First of all, with respect to the reference of accounts. It might be a cause in Chancery; it might be an administration; and it would often be found that those accounts which appeared to be the simplest frequently gave rise to the most complicated business. They would have to require proof of all the debts claimed against the estate; inquire what specific liens there were in the way of mortgages, &c., to decide priority as between men, and numerous extremely complicated questions. The clause relating to this subject was to the effect, That the Lord Chancellor or Vice-Chancellor in any causes or matters wherein it should appear that any accounts or inquiries that might be required to be taken or made might be more effectually taken or made by the judges of a County Court, should direct such inquiries to be taken before the said judge. Now, if
they were to enter into an inquiry in the beginning, before they referred the cases or accounts, a great deal of time would be wasted, and great expense would be incurred. Besides, the country solicitors were not acquainted with that kind of business, and now they required their London agents and counsel to attend the Masters' offices. He did not mean to say that in the course of a year some half-dozen cases might not arise which could safely be referred; but he thought it a most unwise course to embark County Court judges in matters in which they had had no experience, and which were beyond their ordinary jurisdiction. The next point was one which he thought might be adopted with some advantage, and that related to County Court judges taking examinations and evidence viva voce in certain cases. The regulation at present by which certain interrogatories were reduced to writing by both sides and put to the witness before the examiners, was a most unsatisfactory mode of proceeding. Let the interrogatories be drawn up as skilfully as possible, it rarely happens that a witness would, in answering those interrogatories, disclose the whole matter which it was supposed he was capable of producing. A practice had of late grown up which he considered to be extremely objectionable, namely, for the solicitors to go over the interrogatories with the witness, and write down the answers, which the witness subsequently read before the examiners. It might be better that the inquiry should be made viva voce, but he was afraid the County Court judges would, in many a instances, be incompe
tent to conduct it.
Lord BROUGHAM contended that his learned friend had totally mistaken the bill as it at present existed, and said the clause to which he had referred at such length (the 13th), with respect to the power of referring accounts and inquiries, was word for word the same as that in the bill of 1833 (the 72nd clause.) He (Lord Brougham) had the authority of his noble and learned friend, Lord Lyndhurst, in favour of an arrangement such as was now proposed. Lord Lyndhurst had said, "that having often considered the means of relieving the suitors of the Court of Chancory from the expenses and delays in the Master's office, he should be prepared to support a plan for transferring a considerable portion of the business in the Master's office to local judicatures.' If these clauses were struck out, he should not press the bill further.
Lord CRANWORTH felt that the altered state of our social relations, by reason of the facility of communication, had, in the course of the last twenty years, made the system of County Courts less beneficial than it would have been twenty years ago. Still he thought it would be a benefit further to improve that system, and he saw nothing objectionable in the clause under discussion, by which the Chancellor, Vice-Chancellor, or Master of the Rolls (when it should be made appear to them that any accounts or inquiries in any cause might be more effectually taken in the country), would have the power so to direct. His noble friend (Lord Truro) had asked, how could they know that it would be more convenient to take the inquiry in the country? It was true there was some difficulty, and if there was any real ground for doubt, he (Lord Cranworth) admitted it must be referred to the Master in London. Then it had been suggested that the power should be qualified, and only apply to cases in which both parties consented. But he thought the clause was better framed as it stood than if it were framed for both parties to consent, because every one acquainted with the courts must know that when parties were called on to consent to anything, the counsel on one side or the other would withhold that consent, on the ground that they had no instructions. It was far better that the hands of the court should not be tied up, and that in cases in which the court was satisfied it was desirable, on the showing of one of the parties, it should have the power of so directing a reference to the County Court, though the other party would not give their consent. He quite agreed with his noble and learned friend (Lord Truro) that it was highly undesirable, and nothing would induce him to give his consent to any measure which should have the effect of transferring to the County Court all the functions now exercised by the Masters in Chancery. But because there were inquiries of importance, it did not follow that there were not others of no importancce and of no difficulty. Supposing, for instance, it was necessary to inquire who were the next of kin of a deceased tradesman at Penzance or Carlisle. Even now, when such a matter was in the Master's office, advertisements were circulated through the papers in the locality, calling on the next of kin to come in and state their claims. All was done by directions from London in the local papers; and why-if the court was satisfied, it could be more cheaply and better done-why not have the power, pro hac vice, of requiring that it should be done in the country, to prevent delay? With all deference to his noble and learned friend, he (Lord Cranworth) could not feel the force of the objections which he (Lord Truro) had urged against this clause. As far as it went, it was positively beneficial, being a move in the right direction to enable them to see how far legislation might be extended in that very proper direction. He believed in doing this they were doing one thing analagous to the practice of the Scotch courts, where matters were often referred to accountants, not officers of the court at all. It
was a course likely to be attended with no disadvantage, but with some advantage, and certainly with the great advantage of determining how far they should proceed further in the same direction.
Lord CAMPBELL was prepared to support several objections of the noble and learned lord (Lord Truro) against the arbitration and reconcilement clauses of the bill; but with respect to his objections to the equitable clauses, he could not concur with him. It had been very good-humouredly said in his absence, that he was a postulant in equity, though he had pledged his irrevocable vows to common-law, and therefore he should claim to give his plain and honest opinion on all the important clauses of the bill. He did not think the County Court judges were so incompetent as they had been represented. It had always been contemplated that certain questions in equity should be referred. In the bill of 1833, and in the bill of 1846, there were clauses very much resembling, though not going to the full extent, of the clause under discussion; still the purport of the clauses contemplated a reference of certain matters to the County Courts. He spoke with some confidence, because he had had the benefit of a conference on the subject with his noble friend lord Langdale, and lord Langdale said he, many years ago, suggested the clause, which was now part of the bill, and he had always maintained that it was intended to give a power of this kind for the purpose of referring questions to the County Court. Seeing, therefore, no reasonable ground for striking the clause out, now that it was introduced, he (Lord Campbell) should support that provision of the bill.
The LORD CHANCELLOR thought it unwise to give powers which were only to be applied to an infinitely small number of causes, unworthy any kind of legislation. There were married women, and infants, and lunatics, and persons who could not protect their own interests, upon whose account the Court of Chancery had to bear all responsibility, and there were no means of knowing whether inquiry in the country would be effective. When causes were being heard they were not discussing items of account, but some great principle, the disputed facts, the construction of a will, or the construction of an agreement; and it would create great surprise if, when a cause was ready for hearing, a limited number of inquiries were to be sent down to the County Court judges. They might speak of the next of kin of tradesman, but their claims were more difficult to adjust than the claims of the next of kin of peers. There might be causes in which inquiries might be prosecuted in the County Courts, such as a question of marriage, or a question of baptism, where the register was found in the adjoining parish, because the church was pulled down where the parties were residing at the time, but he ventured to say such causes did not amount to one a year. Generally speaking, the County Court judges were not selected for questions of such a description, and exceptions to the proceedings before them, on the ground of irregularity and mistake, would be the cause of great delay and expense. But though he felt strongly that they ought not to take any such power he should not presume to divide their lordships upon the clause.
The clause was then agreed to, as were clauses from 14 to 21 inclusive.
Upon clause 22,
The LORD CHANCELLOR objected to the clerks of the County Courts being authorized to exercise all the powers given to the judges, unless the order directing the inquiry should otherwise direct. How was it possible for the Lord Chancellor or ViceChancellor, or Master of the Rolls to exercise any discretion, whether the power should be extended to the clerks of the County Courts, without knowing what the matter would turn out to be which they would have to perform?
Lord BROUGHAM explained that it was a mere power to take answers to common interrogatories sent down for the very purpose. After some further conversation clause 22 was struck out. Clauses 23, 24, and 25 were agreed to. On clause 26 being proposed,
Lord CAMPBELL objected to this clause. He would not go so far as to say that a barrister should not hold a brief except through an attorney, but yet he thought it most important to the honour the bar that a distinction should be kept up between the different classes of the profession. In the Superior Courts the danger was sufficiently guarded against by the etiquette of the bar and by professional opinion, but before the County Courts he was of opinion that there was no such defence; and his firm belief was, that in the country there would spring up a class of practitioners who would conduct causes as between themselves and their clients; who would do all that belonged to an attorney or a solicitor; who would enter into a rivalry with the country attorneys; and who would by no means do their business in a better style than them. He moved, therefore, that this clause be struck out.
Lord BROUGHAM had a strong opinion the other way. His great objection to the clause contained in the act of 1846, which forbade barristers to accept briefs except through attorneys was, that it introduced a new law, because before that time there was no restriction whatever on persons appearing before courts of law without being instructed by attorneys. He agreed with his noble and learned friend that the etiquette of the Superior Courts im
posed a salutary check upon the abuse of the practice, but he would remind him that the same liberty of appearing in a cause without being instructed by an attorney was allowed in Bankruptcy Courts, and in various local courts-in courts below as well as above the County Courts.
The LORD CHANCELLOR agreed with his noble and learned friend (Lord Campbell), that the etiquette of the superior courts imposed a a salutary check upon the practice referred to, because, though a few cases of abuse had occurred, yet the professional opinion was found quite sufficient to check them, and he was quite sure if such a practitioner went the circuit he would be reduced to dine alone. But he feared the liberty allowed by this clause would go to encourage a few individuals who were now to be found lurking about the gaols, making the acquaintance of the turnkeys, or even of the inmates themselves, and haunting the purlieus of the police courts; and he would ask his noble and learned friend whether he was prepared to sanction the conduct of such individuals? The County Court judges had not the means of discountenancing the system which the judges in our Superior Courts had, and therefore they required more protection to put down the system which was so ready to spring up in these courts, of practitioners bargaining with suitors for remuneration according to the degree of their means, and all those other evils which the lower portion of the profession was so much exposed to.
Lord CRANWORTH would give no opinion on the point whether the clause ought originally to have been inserted in the bill of 1846; but having been so inserted, he thought evil consequences would ensue from its repeal, and therefore he objected to the present clause which went to repeal it.
Lord BROUGHAM said he had never witnessed a more frightful picture of a class of professional artists drawn by such a master hand as he had heard to-night from his noble and experiencedhe meant his noble and learned-friend (the Lord Chancellor). He hoped his noble and learned friend had exaggerated the picture. If he had not, he feared the retention of the clause in the act of 1846 would do little to remedy the evil, because what could be more easy than for such a man as his noble and learned friend described, when the judge asked him, "Are you instructed by an attorney?" to reply, "Oh yes, by two of them;" and surely no man would pretend that the cause in hand was to be stopped while the judge ascertained whether or not he had told the truth. The clause was then struck out.
On clause 27 being proposed,
The LORD CHANCELLOR said he objected to this and the following clause, which allowed parties to bring an action of whatever kind before a County Court by consent, and to have it tried in any manner they pleased. He asked his noble and learned friend how he expected the ordinary business of the courts to go on while these courts were proceeding to try all manner of causes, not upon any known rules of law, but in whatever way the parties might agree upon. It struck him that this would lead to the greatest possible confusion, and that these courts would find it impossible to discharge their ordinary duties. He moved, therefore, that this clause be struck out.
Lord BROUGHAM said that the bill of 1846 contained clauses which were virtually the same as those which were known as the optional clauses; but as some doubts had arisen as to their proper interpretation, the present clause had been introduced, the real object of which was to open the door as wide as possible to the trial of all causes by consent, at the doors of the parties, and in any manner they might choose. The objection of his noble and learned friend was to the local jurisdiction altogether. The LORD CHANCELLOR: No.
Lord BROUGHAM: Now, would you not have objected last year to the extension of the jurisdiction of these courts from 207. to 507. ? The LORD CHANCELLOR: Oh, I think we may find topics enough to entertain us without going into that.
Lord BEAUMONT was favourable to what were called the optional clauses, but he thought the present clause ought not to go farther than to clear up the doubts which attached to the clause of 1846. Lord CAMPBELL did not believe that these clauses would ever be carried into practice.
Earl GREY said his objection was, that a judge in one County Court, who might have acquired a reputation, would have his hands full of such cases from all parts of the country, while the proper business of this court was neglected.
Clauses 27 and 28 were then struck out.
Lord CAMPBELL observed that in the County Court a debtor was obliged to prove his whole demand, even although the defendant was absent and did not contest the debt. Now, in the Superior Courts, judgment went by default, without putting the plaintiff to any expense. He considered an improvement would be made in the County Court practice if, after notice of the demand had been given, the neglect of the defendant to appear was taken pro confesso.
The clause was then struck out, as also clauses 38 and 41. Clauses 36 and 37 were agreed to, and clauses 39 and 40 were postponed.
Lord BROUGHAM then rose to bring under the consideration of the committee what he considered a very great improvement in County Court jurisdiction-namely, the introduction of Courts of Reconcilement. The noble and learned lord (the Lord Chancellor) had described in black colours, with an experienced hand, the evils which a low class of practitioners introduced into the litigation of the country. Now anything which would tend to bring the parties together before the judge without any intervention would materially abate the nuisance which had been described, and no one could deny that it was enormous. If anyone asked him why he wished to introduce a foreign practice into this kingdom, all he would say was that, unless human nature was entirely different in this to what it was in any other, the effect of this jurisdiction would be most extensive and most beneficial. He would not fatigue the house with examples he would merely refer to its effects in France, where it was less effective than in any other part of the Continent-less than in Germany or in the north of Switzerland, or in Denmark, where it was most effective of all. He took the average from the year 1838 to 1846, and he found in France that there had been 1,000,000, strictly speaking 999,000, causes annually brought into and amicably arranged by the friendly advice of the judge, and that these courts, and that no less than 723,000 of these were settled only 276,000 were not so settled. So that three-fourths of the whole number of litigants were reconciled by the amicable advice of the judge. The first 12, or the reconcilement clauses, were then rejected, and the house resumed.
Their lordships adjurned at a quarter before nine o'clock.
MONDAY, April 14.-Lord BROUGHAM was then understood to move for a return connected with the County Courts, but the particular object of it was not heard in the gallery. The noble ford remonstrated against the complaints that had been made with respect to any increase of the salaries of the County Court judges, and said that the working of those courts proved how highly beneficial they had been to the public. His noble and learned friend on the woolsack had said, that ninety-nine cases out of one hundred decided in those courts were for sums under 20s. He had looked at the returns, and he found that about one-third of the cases were for such sums, but it appeared also, that out of 130,000 disposed of by those courts last year, no less than 32,000 were for sums above 107., while he found that in the Courts of Queen's Bench and Common Pleas, in the year 1827 (we believe) -the last year for which there was any return-the number was only 31,600. There was another subject that appeared to him to require attention, and that was with respect to the state of the criminal law digest. Nine months since he had had a correspondence with his noble and learned friend on the woolsack, in which his noble and learned friend expressed himself fully sensible of the labours of the Criminal Law Commission, and he (Lord Brougham) was in hope that something would be done with respect to it; but the Government had allowed that commission to expire. Every one was aware that the labours of that commission had been very great, and, even without its being renewed, he thought advantage might be taken of the admitted good the learned members of it had done.
The LORD CHANCELLOR said his attention had notbeen called to the subject of his learned friend's last observations, but as to the renewal of the commission in question, the Government were of opinion that it was not required. With respect to the cases that had been disposed of in the County Courts, he had merely said that a large proportion of them were of the description he had referred to on a former occasion; and when his noble friend spoke of the increase of the salaries of the judges, he (the Lord Chancellor) had mentioned that a considerable number of the cases disposed of by them required no labour.
Lord BROUGHAM said that one reason why those cases were disposed of with so little labour was, that the judges had the means of examining the parties themselves.
The house adjourned till Thursday, the 1st of May.