The Sun.
London, England, 1855-04-27 00:00:00

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•

PAPE I Z
just <;fr\\
burden which was necessary to bring the war to a an ~- ~_
t
honourable conclusion. (Hear, hear.) - ' !-..4k„1.% ?.__ 7
Mr. EWART preferred the slight exteznsiOn •of 1tti.4='..,.. .'i k.
system of loans to the proposed mode, which f4llViiiialli' - ,:t.. ,„!;
~.,.
the sound principles of political economy. • ' -i:", --,-7
The bill was then read a second time, and was order ,T:: ;s`' N./
to be committed to-morrow.
'-1 S
SPIRIT DUTIES (SCOTLAND AND IRELAND) -
BILL.
On the motion that this bill should be read a second
time,

Lord NAAS said it was not his intention to oppose the
bill ; but he wished to know whether, in consequence of
the proposed alteration in the duty of Irish spirits, the
Government intended taking any steps to prevent smug-
gling, which, both morally and financially, Would be at-
tended with the most pernicious effects? He also begged
to know whether it was the intention of Government, at
present or at any future time, to consider a scheme for the
general equalisation of duties on spirits, which weild tend
to remove much injustice and many anomalies whidh ' now
existed ?
The CHANCELLOR of the EXCHEQUER, who spoke
in a very low tone, said he fully agreed with the observa-
tions of the noble lord as to the pernicious effects of smug-
ing theling, butduty the
tIl experiencelreland
toookf
place,last year,
was
favourable to the suit-
when an augmentation
position that the social condition of the country was so
much improved that smuggling would not be resorted to.
It was the intention of the Government that the act for
the employment of the constabulary as a check on smug-
gling should be enforced.
The bill was then read a second time, and was ordered
to be committed to-morrow.
The Dispatch of Business (Court of Chancery) Bill was
read a second time.
TESTAMENTARY JURISDICTION BILL.
Mr. R. PHILLIMORE presented a petition from a num-
ber of proctors, who concurred in the necessity for some
improvements in the courts in which they practised, and
would offer no opposition to such a measure, but praying
for an inquiry
as to their rights ; also petitions frem seve-
ral junior proctors and paid clerks of proctors, praying
that their claims might be considered.
163Mso.liMoiAtoLrsIoNfSLpornedsoennte;
fdropeoltlitli2onhsankagain,st the. bill
,from.
traders of the City, amongst the signatures
had paid for their
the Lord Mayor ,esmebrecihnagats
thatan of
fromarticlls
?aortoir.leedaochl,erpkrsaylfogprtohcatotreff who
e
from a committee
bill passed theymi go lii t_
proctorsbe reimbursedss
representingal all the their expenses; xgpe enne ser
general
;I)
body
praying that they
parts
tof be heard, by themselves or coun-
sel,lTOß-GE-
against those the bill affecting their interests.
pursuant tiO.hnaoviticneg,
reading oft he bill,
tomomveodvethite
should
Mr. MALINS rose, p
be read a second time that dna
the house would give
him credit six months. He trusteA
t that he did not desire to
perpetuate a single abuse in this or
jus-
tice in the kingdom. In a desire to
other court of ire to improve their courts,
he would yield to no man, but there was a difference be,
tween improving and abolishing. If his hon. friend had
proposed to abolish the jurisdiction of these courts as eccle-
siastical courts, and made them temporal courts he, and
those who acted with him, would have given their cheerful
assent to such a measure. (Hear, hear.) But last year
the Government came forward with one view, and this year
with another, and yet they hoped that the house would
support the measure which involved considerations of the
highest importance. The general object of this bill waste
make a total abolition of all the existing testaments
t 7
courts of the country—all the ecclesiastical courts were ifo
be abolished, all their jurisdiction was to end, and all their
business was to be transferred to the Court of Chancery.
What was that business? It, was the testamentary busi-
ness of the whole of England, involving the rights of all
the personal property of the country, and was proposed to
be extended to real property also. In 1852 the number of
wills proved in England was 18,703, and 7,068 letters of
administration were taken out, making a total of more than
25,000 testamentary and intestate grants in one year. The
probate duty during the same period was upwards of
1,000,0001. All the commissions which had inquired into
this subject had concurred in the one general principle, that
the time had arrived when it was necessary to abolish the
testamentary jurisdiction of all ecclesiastical courts. The
house would bear in mind that the judge of the Prerogative
Court of Canterbury was appointed by the Archbishop of
Canterbury, and the judge of the Prerogative Court of
York was appointed by the Archbishop of York. The busi-
ness, however, was tdmporal ; and therefore it followed
that the courts should be temporal. His right hon. friend
proposed by his bill of this year that the whole of this
business should be transferred to the Court of Chancery ;
and now came the question, upon what principle could that
business be transferred to Chancery? According to the
present practice, upon the death of a testator the executor
produced the will, which thereupon underwent the process
of authentication ; and his right hon. friend proposed to
carry on that investigation in the Court of Chancery, on
the ground that, as the effect of the probate of the will
was connected with the construction, the whole matter
ought to be in one court. He (Mr. Malins) thought the
question of the effect of a will was one thing, and the
construction of it was a totally different thing. Under
the present rule the will was generally proved within
a month of the death of the testator, and the executor,
going to the proper court for the probate, placed the
instrument in the hands of a proctor, as the most
ready mode of detecting any fraud, if fraud there should
be. When the house considered the great opportunity
there was for committing fraud in regard to wills, he felt
satisfied it would be slow to make an alteration that would
have the effect of sweeping away an existing establishment,
which, at present, was the best guarantee against frauds
with respect to wills. While there were 25,000 wills
proved within the year, or 80 a day, the total amount of
bills filed during the same period in the Court of Chancery
was not above 3,000 ; and when they considered that suits
in Chancery embraced every possible engagement into
which men could enter with one another, it would be im-
possible to come to any other conclusion than that suits
with regard to wills in the Court of Chancery amounted to
no morethan 500 in the whole. Under such circumstances
there was oue-fiftieth part of the wills submitted to probate,
in regard to which there was no litigation whatever, and,
consequently, what, he would ask, became of the argu-
ment that, because wills were proved in a court, the same
court should be the court of construction? Parties went
to Doctors' Commons ifor the purpose of establishing
what was the will, and when they were armed with
probate they went to the proper court, where the ques-
tion was raised as to the rights of the parties under
that will. The matter would not be at all facilitated by
both these things being done in the same court. If the
process of proving were gone through, and a question arose
as to who was entitled under the will, the process must be
commenced anew, even if there was but one court ; and,
therefore, for all practical purposes, the new court would
be as much two courts as the courts at present existing.
His right hon. friend proceeded upon the principle that
there must be one court because these matters were so
much intermixed;; but he (Mr. Manna) considered the two
things were essentially distinct. The cases of testamen-
tary litigation were very few. Out of 12,000 wills proved
in the Prerogative Court of the Archbishop of Canterbury
in the year, the average of contested cases was not more
than 40. This was a mast important fact for the house to
bear in mind, for he thought that they ought not to be
called upon to legislate particularly for these few contested
cases. The great bulk of testamentary suits terminated
so early—many of them ending within two or three
months—that it would be quite unreasonable for the
house toltake them into consideration for the purpose of
throwing them into a cuurt of construction. His right
hon. Ifriend dwelt fat considerable length on the great
abuses which had taken place in the ecclesiastical courts,
and had referred to the appointment of Mr. Moore, and also
the appointment of Mr. Manners Sutton, the son of the late
archbishop ; but ho (Mr. Mathis) felt satisfied there was
not an advocate or other practitioner in the ecclesiastical
courts who did not lament that such things should exist,
and who was not as anxious as his right hon. friend to
prevent their recurrence; but these things had nothing
whatever to do with the practice of these courts. The
right hon. gentleman might as well have told the house

that, becaue three or four years ago abuses of great mag-
nitude existed in the Court of Chancery, he should now in-
troduce a bill to abolish the High Court of Chancery. Cer-
tainly there were abuses and imperfections in the ecclesiasti-
cal courts, but they were of easy remedy, without involving
the total destruction of those courts. But then, as the ec-
clesiastical courts had become unpopular, they became the
subject of a public inquiry before a commission appointed
during the existence of Lord Derby's Government in 1852,
and the conclusion at which that belly arrived at was, that
the testamentary business in the common form was well
and satisfactorily conducted. The report of that commis-
sion was made to the House of Lords, and might not be
so well known to the House of Commons as if it had been
a document returned immediately to their house.
Tho commissioners were Sir John Remilly, Master
of the Rolls, Lord Justice Turner, Vlce-Chancellor
Kindersley, Tice-Chancellor Sir W. P. Wood, Sir John
Dodson, Dr. Lushington, Mr. Justice Crompton, Sir James
Graham, Mr. Henley, Sir R. Bothell, Mr. Rolt, Mr. W.
M. James, and the Queen's Advocate, men of all parties,
forming, therefore, a commission without political bias.
It was the unanimous opinion of that body that the testa-
mentary busiuess should be transacted in temporal courts.
But on the question of transferring that business to the
Court of Chancery, nine out of these 12 gentlemen—the
Master of the Rolls, Sir James Graham, and the present
Solicitor• General dissenting—were of opinion that the un-
contested testamentary business could not be transferred,
as general business, to the Court of Chancery with safety;
and, if transferred to a separate department, which, for
all essential purposes, would be a separate court, that it
would be attended with all the inconveniences without
the advantages of a distinct court • and, as they were of.
,tathstaey
opinion that the contested and the uncontowsteudrt
mentary business ought to be in the samei.,
it
theon
were opposed to the trancsifie,retnic,eeii,of
haenzgo
the
otpoinfohne
Court of Chancery. Such,
to the most
use was of issuing such commaissticorns
of these learned commissioners,
their °P
at the
ti
enhnieoe nr
sasiltSwtVienarsgesutoot
learned men of the day, d if,
Government of the day ?
be set aside as worthless by .
their part, and a report niatinheteee,i2sroteihiscee
f " adgkeelidberawittiaotn
and
- the
divisions and therefore he sett eas
seldom mentioned
tShire Jas. Graham wash
nins expressed liy these gentlemen when
burt.,:etswe
store by the opuneod
oR to those formed by gentlemen who
they were °PP-- • bed the evidence throughout. It
had beard and wei
gthat the solicitors, intowhose was
a
mistake to suppose
sfer the busine • hands it
was intended to tran Ss of the ecclesiastical
were in favour of the change• He might refer t
courts,
'tion which he had presented ' - • °
the peti
of these _against this bill,
signed by 163
intended for them. Many of them,
moreover, were exa-
mined before the commission, and Nava
against the change proposed in this bill. strong evidence
the firm of Labe.) and Co., London,l' Mr. Lahee, of
expressed an opinion that it would be when so examined,
to throw open the testamentary be most objectionable
attor-
neys ; that the public would business to the
at-
torneys did not desire it • very much regret, and the
business now was , that it was unnecessary, for the
done anywhere—byextremely well done—not to be better
select body of respectable men, known
to the court in whah they practised; but that if any at-
torney from any part of the country were allowed to
appear and prove a will ,such practice would ex
tremely
dangerous. a practice would be
The learned Solicitor-General proposed to go
turther, for he provided for not appearing at all, but send-
ing up a will by post and proving it. Mr. Young, of the
firm of Bradbury and Young, was of the same opinion.
Mr. Freshfield, the solicitor to the Bank of England,
thought such a change would be attended with no advan-
tage to the public in the ;conduct of the business or the
diminution of the expense, and that great danger wouldb
f the
incurred by the opportunity which the opening 0 t
business to attorneys generally would give to the perpetra-
tion of frauds. It could not be doubted that the sentiments
of Mr. Freshfield, on this subject, were, in the main, those
of the great majority of the solicitors,ie petition who were
he had pre-
' cordially
of opinion—as had been proved by t
' sented that evening—that the system now adopted at Doc-
tors' Commons was an excellent one ; that it worked at
once inexpensive • ly and effectively ; and that it afforded
blic theto u
the greatest satisfaction_p • He was not ad-
verse to improvement in the present system, but he was
. totally opposed to the idea of overthrowing and utterly