Star. — London, England, 1826-05-19 00:00:00

boa._ House uporahe composition Oboe Commission which had been appointed to un kerta e this inquiry. It had been said thit nothing good could be expected from a body so constituted; indeed be had heard it said in that House, that it was perfectly ridiculous to expect anything from s •ch pet sons. And if it were objected that such as inquiry should be conducted by persons deeply conversant with the subject in all its branches, persons of the greatest experience, and of acknowledged talent, then he admitted that such objections applied with full force and effect to those who composed this Commission, because he thought it impossible that a C mmission could have been formed of men of longer experience, of greater talent, or of more habitual ac quaintance with the points requiring investigation.— Then it was said that their prejudices were of such a nature as to preclude the possibility of their decisions leading to any important result. Now, he b-gged to appeal to all who hid attended to the conduct of the Commissioners, to some who were his friends, and to some with whom he generally differed upon poli tical questions, and he would confidently ask them whe ther they had ever witnessed, in any inquiry whatever, a greater portion of fairness, liberality, and candour.— He was not one of the Commission, but he ha I o a t been an inattentive observer of its proceedings, and he would tike upon himself to say, that no suggestion of abuse was ever made, but it received immediate and ample attention. It was impossible for the Commissioners to ' pursue a more judicious course than they had done in laying the evidence before the House. If that evidence had not been on the table the day after the bringing up of the Report, some Honourable Gentleman would certainly have moved for the printing of the whole of it. If they had selected such portions of the evidence as they might deem most clear and instruc tive, they would be charged with having garbled the subject. They therefore could obviate all objection only by laying the whole body of the evidence before the House. To this course he could not anticipate any objection from his Hon. and Learned Friend the Mem ber for Winchelsea, for that Hon. Gentleman had said on a former occasion, that he hoped Gavernment would not be satisfied with barely furnishing a report, but that they would lay before the House all the evislence. The Commissioners requested the attendance of Fall those who were best calculated to furnish information on the aubject of their inquiry; but they in no instance se fused the evidence of any individual who had any com plaint to make or any suggestion to offer. Further to pre vent the possibility of mistake, after the evidence was taken down, a copy of it was transmitted to the witness, that its correctness might be completely ascertained.— The Commission was all through conducted with an anxious desire on the part of the members who com posed it to remedy whatever abuses or delays might be found to exist in the practice of the Court of Chan cery. Here it was important to consider what had been thrown out on this subject as to a more extensive reform. Some there were who held that the jurisdiction of the Court of Chancery ought to be entirely abolished, as being an encroachment upon the Common Law of the country. Now if this opinion were well founded, the labours of the Commissioners had been altogether ma'. sir ected, and instead of inquiring into the abuses which prevailed, and applying appropriate remedies, their business simply was to abolish the whole jurisdiction. Now, he put it to the House, whether it was nut impossible to get rid of the jurisdiction of that Court in the existing state of society ; and in illustration of the necessity of its existence, he would but briefly allude to those points to which that juristliction ap plied. First, there was much of the real property of the country vested in trusts, and much also of the personal property confided to trustees. Now must riot there be a jurisdiction competent to enforce the management and due administration of these trusts? Cases in which so many complicated and conflict wg interests were concerned, and so much property involved. The Common Law Courts had no jurisdic• Lion over such cases. The first consideration then was, whether the Court of Chancery was necessary to the adjudication of them? There was the case of copyright property ; if the Chancery Court had no jurisdiction in that, what remedy had the plala , iff? An appeal to the Courts of Law. Suppose he sought an immediate re medy in them? The suit might last from Term to Term and the injured plaintiff remain a year without his re medy ; aye, and still longer, if there were not a Court of Chancery to give him instantaneous redress. Next, as to the specific performance of contracts, the Courts of Com monLa w had no power to enforce the fulfilment of a con tract ; they could only give the plaintiff damages for the non-performing it ; and if the damages were not paid, they might send the defendant to gaol. But the Court of Chancery alone possessed authority to grant an im mediate and direct remedy, by compelling the plaintiff to perform the conditions of his contract. The next point which presented itself was the settlement of ac counts between partners: on this important matter a Court of Equity alone could afford a remedy.. The next cl.iss vvas that of fraudulent transactions—ln the correction of which the Common Law Courts could not decide; they were the peculiar objects of an equity • jurisdiction. Then there was the administration of the concerns of infants and married women, which also required the superintendence of that Court. In brief, the consideration of these several cases would spew that the jurisdiction of the Court of Chancery was . necessary to a satisfactory transaction of the public busi►►ess, a►ul that it could not be abolished.— The quest on now presented itself, by what Courts that jurisd►ctio ought to be exercised. It was plain that the jurisdiction must either continue to reside as heretofore in a separate Court, or it must be engrafted on the Courts of Common Law. If the latter course were to be preferred, according to the suggestions of some, they must necessarily double the number of Common Law Courts to meet the consequent increase of business, and those Courts should alternately hear equity causes one day, and common causes another ; so that even then the jurisdictions though nominally the same would be really distinct. Again it should be considered that great attention must be paid to the Common Law in order to the due administration of justice. No less attention was necessary for a proper discharge of duty in the Courts of Equity, the admi nistration of which was quite different from the former, and if they united the systems, could it be expected that the Judges could possess the same extensive information which they did while the jurisdictions • were separate. Pursuing the suggestion thrown out by an Hon. Friend near him, he would advert to an in : -stance of the united jurisdiction, as it existed in the Court of Exchequer —not indeed in its present state, but as it • was constituted up to the close of the last century.— Now while that Court possessed a double jurisdiction, every one who was concerned in a common law case wished to have it tried in the Court of King's Bench' rather than in the Exchequer; and the suitors in Equity cadets gave a similar preference to She Court of Chan; eery. The inconvenience arising from the mixture of the two systems was-so great that an Hon. Member on the other side of the House once brought in a Bill, the object of which vas to separate the jurisdictions; and the consequence eventually was an arrangement to which the Chief Baron held the Equitable Jurisdiction in a separate Court, while the other Barons in another Court presided only in cases of common law. Now to what points was it necessary, that the attention of the Commis sioners should be directed ? It was impossible for them to suppose the jurisdictions should not be held in separate Courts, or that the proceedings should not commence 'by bill and answer. Laying this down as a principle, they directed their attention to those which had the strongest claim upon it. When they found complaints of expence and delay, they rationally said " let us examine the proceedings from the beginning to the end of a suit, and correct the defects as they present them selves." They began with the subpoena. The complaint against this was, that it conveyed no certain informa tion to unlettered men, to whom it might happen to be directed. This objection the Commissioners obviated, by rendering the language of the sobpsna clear and intelligible, so as to explain the precise object which it was designed to effect. The time allowed for entering an appearance formed another ground of complaint.— In a town cause, the prescribed time was short, but in a country one it was long. In the latter case, they cor rected the evil by abridging the time; and parties were bound to appear, sot indeed so speedily as in a town muse, but on a day specified. According to the present practice, when a defendant neglected to appear, an attachment issued, and being committed thereupon, he Was brought op to the Court by habeas corpus. If he still refused to appear, an appearance was entered for , 'him. The Commissioners, however, deeming the habeas amps an unnecessary proceeding, lessened the expence and delay by entering an appearance for the defendant immediately on his being taken into custody. After the appearance was entered, it was highly important that a fair time should be allowed for putting in an answer. It was right that this time should be neither too little 'nor too great, and the regulation accordingly made limited the period to ten weeks in a country cause, and eight weeks in a town cause. Hitherto, when a party refused to answer, he was attached ; a habeas corpus then issued, upon which he was brought np. If he still refused to answer, he was committed to the Fleet. An Alias writ was then served upon him, and in cases of his persisting to refuse, then a Pluries, and finally, an Alias Pluries; and then if no answer were filed, the Bill was taken pro confeuo. But it was evident, that also these proceedings were quite unnecessary ; for when the defendant was once in custody, why should occasions be afforded him to repeat his disobedience ? The Commissioners therefore considered the shortest time which ought to be allowed the detendant for filing his answer, after he was brought up, and on his neglecting to put it in, the Bill was then to be taken pro confesso.— Again, supposing the attachment not be executed, and the return of the Sheriff to be non est inventus, after various intermediate proceeding:, a Commission of Re bellion was issued, and finally, a seques'ration. Now all these complicated details were removed by the Commis sioners. As to the case of an answer filed, every one kne w that answers in equity %sere frequently evasive iu their character, and it was of course necessary that there should be a power to compel a clear one. In order to 'hew what the Commissioners had done, he was bound to state the practice of the Court as it existed. From the Vice Chancellor's decision an appeal lay to the Lord Chancellor; and that the party appealieg might, if he pleased, resort to the House of Lords, and when a year and a ha:f elapsed, their Lordships might finally decide that the defendant's answer was not sufficient, and the only consequence was, that he was then obliged to file another answer. For this purpose he had the same time which was allowed for his first answer ; and after ;all his second ;mower might ultimately be decided to be insufficient. Not until the same decision was passed upon his third answer was it imperative on him to put in a sufficient one. In each successive case, the same round of delay remained to be gone through in appeals from the Master to. the Vice Chancelor, from the Vice Chancellor to the Lord Chancellor, and from him eventually to the House of Lords. It was only after three times, and on filing his fourth answer, that the defendant was bound to put in a good and sufficient answer, on pain of being taken into custody. He did not say that all defendants availed themselves of these delays ; but it was competent for any one who pleased to do so, according to a state of practice which existed in the time of Lnrd Chancellors Bacon, Notting ham, Somers, Cambden, Hardwicke, and which con tinued up to the present day. The question of Excep tions was one of extreme importance, and by the re gulation of the Commissioners the decision of the Mas ter was to be final. Moreover, on deciding, he was to -.ribe the time within which the defendant was bound to put in a further answer. If the second answer were not sufficient, the Master again was to decide; and on the insufficiency of the third answer, the party was to be committed to custody. On this point the Commissioners conceived that the Master ought to de cide, unless in such cases as he thought too important, and wh ch be would therefore refer to a higher tribunal. Here it was observable how greatly the Commissioners abridged the usual course of proceedings. In some in stances it happened, that after an answer was filed, the plaintiff couldto no further, the answer being full, and decisive of the whole cause. But even in such a case the bill could not be dismissed for less than three quar ters of a year, and the defendant during all that time was left unrelieved. And if then the plaintiff took a mere formal step by filing a replication, the suit endured for three quarters of a year longer withetit any further proceeding. Even then, if the plaintiff came forward and said, " I undertake to speed the cause," be thereby gained an additional term ; atter the lapse of which he had only to say, " I now undertake to speed the cause with effect," and another term a as granted him for the purpose. Surely this called for a remedy .—(Hear 1) The Commissioners abridged all that unnecessary time to a single term. In common law there were generally but few issues; but in Equity •ery many issues con stantly arose between the various parties, who were necessarily included ; and therefore no just comparison could be instituted between the duration of a suit in both jurisdictions. Another evil was, that almost in the last stage, and on the eve of a Bill being dismissed, a party might say," I am advised to amend," and then on his paying nominal costs of a few shillings, the cause began de novo with all its complicated proceedings. Now, here the Commissioners said to such party," You shall not amend after a certain stage, nor more thah ,once • unless for good and substantial reasons." Another check to the practice of amendment was that the' party who hitherto paid only nominal costs was now bound to pay the full costs of the amendment, which must tend to prevent an abuse of the power.— Thus far he hoped for the support of the Hon. Member for Calne, who on a former occasion said that mach might be done by a Committee in abridging the course of a cause from its commencement to its conclusion. As to the proceedings in Equity, when the plaintiff com plained by Bill an answer was filed, it the parties required it, evidence might then be taken bef. re an Examiner in writing, and having been s • taken it then went before the Judge. %%Then pat ties were at issue, it was the practice of an Examiner to take down the evidence upon interrogatories previously pi epated, and there was consequently no viva voce evidence. Indeed no advantage could follow from viva 'ace testimony, for the evidence could not be heard by the lodge with out new modelling the whole system and doubling or trebling the number of Judges. So that if the system should still continue, and a Commissioner be employed, all the. advantage derivable from viva voce evidence would be lost, and the cause should be sent to a Jury to try the issue. The evils attending the change would be an increase in expense and t he length of the examination.— He had himself witnessed much confusion in evidence taken before Commissioners of Bankrupt. It was there fore better to adhere to the system, such as it at prese:it existed, than to resort to another, however plausible in appearance, yet productive of certain inconvenience.— It was remarkable, that in the evidence taken before the Commissioners, one Gentleman of high character (Mr. Bell) declared that he never knew of dissatisfaction arising from the desision of a Judge, when he undertook to decide on a point of fact. This was the answer of one of the most experienced, intelligent, and acute men in his profession. (Hear.) It was very remarkable that this question had been discussed in another place, and the same decision had been come to. It was perhaps known to many Gentlemen in the House, that in the State of New York, no great alteration could be made, either in the Constitution or in the administration (A . *. tice by the ordinary Legislature, but that it was necessary to summon a convocation for the purpose. About four or five years back a convocation was called for the purpose of examining the propriety of making alterations in the administration of justice. In New York, the Common Law existed now, with few alterations, as it did in Eng land. the Court of Chancery also existed there in the same form as it did in England. A proposition was made at this convocation to consider the expediency o f, abolishing the Court of Chancery, not the juiisdiction of the Court, but to vest it in the Courts of Common Law. The question was discussed at great length, and it was ultimately agreed, that it was more safe, expe dient, and prudent, to continue on the old system. In , the course of the inquiry, the very question of evidence now before them was discussed; and, by a strange coincidence, the Chancellor of that State had expressed the very same opinion as the eminent individual he had alluded to. Mr. Kemp, the American Chancellor, a Gentleman of great experience in his profession, had said, nearly in the same words with Mr. Bell, that he had never known an instance in which the decision of the Judge was not satisfactory.— It was proposed by the Commissioners, that there should be no change for the admission of oral evidence ; but on this head an opportunity would be afforded for the ex pression of other opinions. When points arose which should be referred to a Master, the inquiry before him could not, from its nature, be short, as in the case of complicated questions of title of debts, and other sub jects of detail. The Commissioners, however, took care, that no time should be lost. At present the great cause of delay was with the Master, because he was merely passive, and sat to decide when the parties came before him. If it so happened that he decided in the absence of a party, the latter might apply as of course for a re-hearing. Now, when the cause of an evil was found, the remedy, generally speaking, was easy. So it was in the present case; the evil was re moved by arming the hands of the Master, and this was done by the Commissioners. The decree was mqde returnable within six weeks before the Master.— According to the present practice, between an appeal from the Vice Chancellor to the Chancellor, a cloud of new affidavits usually intervened, so that the Chancellor really decided on a new cause. The very nature of appeal called in question the judgment of the inferior tribunal ; but from the accidental circumstance of a sup posed identity between the Chancellor and the Vice Chancellor, new mattes was permitted to be introduced on reheating of a cause, and thence flowed much incon venience. He felt sure of the concurrence of the Hon. Member for Caine, that in future there should be no appeal but on the same facts before submitted; and its effect would be to diminish the number of appeals.— The number of Counsel, too, would be diminished ; and though he regretted this circumstance for the sake of the junior part of the profession, he felt convinced that that public spirited body would submit with alacrity to a regulation which had the general benefit for its object. In page one hundred and twenty of the Report, the number of Counsel in one case, the Bank ruptcy of Howard and Gibbs, was stated to be seven on one side, and five on the other. In another case, eight Counsel on each side were heard, and some of them from the King's Bench B sr spoke at great length. '—The Chaneelor had to read all the affidavits.— and in the case of " Senior v. Smith," eight Counsel were heard on one side, and there were 96 affidavits. The business would really be better managed by two Counsel, than by a greater number; for where five or six were employed, each was in the habit of depending on the other : but two would find it necessary to exert all their powers, when the interest of their clients en tirely depended on them. The junior were, however, compensated by another arrangement. Until Lord Mansfield's time each senior Counsel at the King's Bench Bar made all his /notions b fore his junior was permitted to make a single one. So it frequently happened that a whole term passed away without affording the very junior an opportunity of making a motion at all. By a regulation introduced at the period to which he alluded, each Couns .1 was allowed to make only a single motion until the round of the whole Bar was thus taken. The original practice of seniors making all their motions at once continued to this day in the Court of Chancery; but by the regulation of the Commissioners, the im provement of the King's Bench was adopted, and evi- dealt to the advantage of juniors.—Every Gentleman in the profession knew the extreme difficulties in giving' judgment, growing out cf the voluminous documents and lengthened evidence exhibited in Chancery causes. He would appeal with confidence, on this point, to a very competent authority on this head, the Hon. and Learned Member for Peterborough. In ordet to meet this par ticular inconvenience, it was recommended by the . Re port to appoint a Court, consisting of Commissioners, who should, on a view of th'e evidence, decide shat cases ought or ought not to be beard before the Lot Chancellor, and - proceed to determine upon the latter, so as to save much of the time Of the Lord Chancellor and Vice-Chancellor. He should endeavour to explain how this would save time also to suitors. The Vice- Chancellor now heard all Petitions in the first instance. The arrears, however, of causes in this Court were, contrary to the extremely overwrought and exaggerated statements made again and again in that House, incon siderable. Owing to the illness. some time ago of the Master of the Rolle, there had occurred an arrear of seven terms: this increase, however, was to be charged to that Learned Judge's indisposition solely. Eighteen months, however, had hardly elapsed before the activity of that Learned Judge had redticed the arrear to that of four terms, which did not much exceed, if it exceeded at all, the arrear in the Court of King's Bench—(ffeor). Ile thought, too, that from the manner in which busi ness was transacted and expedited in that Court, thai the state of the causes in that Court would be (pickle restored to the same condition as it had been in viously to the illness of Sir I'. Plower. After the tr.. traordinary statements they had all listened to in that House, respecting the delays expeTiemed by suitors in the Lord Chancellor's Court, they would be surprised to find that the return of the register ma ie out a list of 109 can- es. Now the Report of the Commissioners had formerly stated, that in the Easter Term of 1822 ti e-e were 105, so that in 1822, and at the present day, their numbers were substantively the same. Thee, too,would shcrtly disappear, were the Lord Chancellor permitted to devote his attention to this sort of causes alone. And here he must say he wished the House were acquainted with the ceaseless assiduity and laborious life of the Noble Lord presiding in that Court. Whilst occupied, however, in endeavouring to reduce the causes on the paper, motions were constantly being made on subjects which required a suspension of the business of the Court, and pressed for an immediate hearing, or else the object of the motion itself would be lost : as in cases of an appeal against a decree, which decree, if carried into effect, would be the means of destroying or injuring the property waiting adjudication. It would be said, hew was the Lord Chancellor to be guided as to causes which should have a preference of being heard by himself instead of by the Commissioners? I'he detortni nation of that point would turn on the answer given by the party to his Lordship, when he appealed to them -to say how the cause should be determined. If they, as gentlemen, told him that unless the cause be taken out of the usual way, injury would arise of a setious nature, then the cause would be taken up by his Lordship in the same way as iu cases of injunction, or cases of lunacy, which required immediate interference. The subject now brought him to the next head, that of Bankruptcies, in which there was no arrear, nor WAS there any arrear in the motions. Indeed there was no arrear except on the paper of causes, as it was termed. The House and the Profession, and, above all, the Pub lic, were interested in devising a system la hich would prevent the increase of arrear, and of course the Report of the Commissioners was not silent on this subject, and they were all anxious to apply a remedy to the Court of the Lord Chancellor. All that could be' done in saving the time of the Court would tend to lessen the arrear of business, the Commissioners recommended strongly a diminution of the time now taken up in the proceedings, and a restriction as to the number of Counsel permitted to address the Court, as well as shortening the proceedings in cases of bankruptcy.— Now when all these might be applied safely by the Bindle thought something very important might be effected in reducing the number of cases, and that we shall get to that much desired point, that a cause shall be heard, when once set down, within a seasonable time. Adverting next to the point of abridging the costs of a suit, much good would result from adopt ing the system bf the Commissioners, as well as with respect to the diminution of arrears. The language of the Report itself did not promise much, but was sufficiently guarded ; they did not say we have done all, but we have done all that we thought to be expedient. However, all tended to save time and expence to the suitors in this Court. When the public felt by the practical working of the system that notwithstanding the passing of the Bill, there was still something to reform or correct, the road would be cleared by the present Bill to introduce further improvement. Hence he was encouraged to expect the House would not refuse its assent to permit him to introduce the Bill for effecting the measures recommended by the Commissioners for the Reformation of Abuses in the Court of Chancery ? I, in the course' of what I have said (continued the Learned Gentleman) have most cautiously abstained from all personal and party matter; for I consider,that on the present occasion, we are labouring to get rid of an existing evil, and to render perfect a defective system. I have not alluded, except incidentally, to the Noble Lord who has presided for so many years over the Court of Chancery with so much learning, patience, and ability. I abstained from such a course, because I did not think the proposi:ion involved the conduct or character of any individual, but the evils and advan tages of a system. I.abstained also from another motive —because I was sensible that I could add nothing to the praises bestowed upon that Noble Lord, even by his most strenuous political adversaries. I remember to have heard from the Honourable Member for Caine, with that candour ; liberality, and love of justice, which marks him, an eulogium lie point of talent, but not in point of truth, infinitely transcending any that I could pronounce. He dwelt upon his profound knowledge of the laws of his country—upon his patient anxiety to ad- minister justice to the suitor—upon his correct and dis criminating judgment, and upon his retentive and capa. cious memory. I de not affect to repeat his eloquent words, but to hint distantly at the scope of the just ap plause: he bestowed. I have also read, for I was not I Member of this House at the time, the eulogium passed upon the Noble Lord by an individual, well qualified by bis knowledge in every department, and influenced by the benignant candour of his nature, though op posed, I may almost say, in bitter hostility—Sir Samuel Romilly. He declared that he had never seen or heard of a Judge who possessed such an earnest anxiety to do justice to the suitors of his Court; n the- Lord Chancellor had any fault, it was, he said, perhaps an over anxiety in this respect. To such tri butes I can add nothing. He has been for fifty years in the profession, and soon after he entered it obtained distinction, and was marked out by the eye of the public for the station he has so long and so ably filled. Not an hour, nor an act of his life, but has corresponded with the opinions entertained and the expectations in dulged. This is due to the Noble Lord, who has been a zealous 'member of the Commission, desirous to give every inforrhation, and to conduct the inquiry in a manner the most candid and liberal. There is not a ~~