The Sun.
London, England, 1854-05-24 00:00:00

IMPERIAL PARLI A:MENT

HOUSE OF LORDS-(YESTERDAY.)

SECOND COMMON LAW PROCEDURE (1854)

• BILL. . .
Lord ST. LEONARDS complained that in the clauses
of this bill with regard to arbitration there was no provi-
sion made in accordance with the recommendation of the
Common Law Commissioners, who stated in their report
that means ought to be taken to prevent frequent ad-
journments of arbitrators. The greatest misfortune
which could happen to a man sending him before an
arbitrator, who was tied to no time within which to
make his report. In such a case the arbitrator only sat
when it suited his convenience, and then very often it
was impossible to get counsel to attend, other appoint-
ments keeping them away. If this part of the bill were
persevered in he should propose to insert some time
within which an arbitrator ought to make his award.
The next objectionable part of the measure was contained
in the 17th clause, by which it was proposed to enact
that if, at the expiration of 12 hours, 10 or 11 of
the jurymen should agree, the verdict of such 10 or 11
should be taken as the verdict of all. The Common Law
Commissioners had reported against any alteration of the
unanimity required by the present law, but the committee
of that house had proposed that after twelve hours' deli-
beration the assent of ten of the jury should be sufficient.
He, not without reluctance, assented to the idea that
after twelve hours' deliberation the unanimity of eleven
should be sufficient, for it might undoubtedly happen
that that one juror standing out would prevent justice
being done. When, however, two jurymen concurred
in opposing the rest, it was quite a different thing
to say that the verdict of the remaining ten should be
taken. He should therefore propose so to alter the 17th
section that the verdict of not less than eleven jurors—
the jury having previously been shut up twelve hours--
should be taken. The next clause to which he objected
was that relating to oaths. This clause dispensed with
the necessity of a man taking an oath provided he had
a conscientious objection to it. The commissioners,
being divided in opinion, had not reported upon this
point. He (Lord St. Leonards) could not at that time
say how far he was prepared to go in relieving a man's
conscientious scruples with regard to the taking of an
oath, but lie objected in the most positive manner to the
question being at all dealt with in the present bill. It
was a subject of very great importance and ought to be
brought before the legislature in a substantive and dis-
tinct form, and not mixed up in the details of a bill like
the present. Nor was this the only ground of objection
tt
oo
st
ah
yi s
wc lhaeutshe. er
olr t sa s
not
va i proposednan should t
take
anoath, lie judgeupon
that party's bare statement that he had a conscientious
scruple to do so. Thus the duty of considering whether a
man ought to take an oath ornot, was cast upon the judge
without his having any means of arriving at a just con:
elusion. Beyond these points, there was nothing in the
bill to which he directly objected ; at the same time,
the measure was of such great importance that he
would venture to detain the committee while he drew
their lordships' attention to the branches of the law
with which it was most intimately connected. The
changes proposed were of such a nature that he felt
bound to direct their lordships attention to them. He
would take a particular instance—that of a common
contract for the sale of an estate. Suppose A should
sell an estate to B, and agree to produce the title on the
7th of May, and to give possession on the 11th of May.
As the law stood, those dates were of the essence of the
contract ; the law knew nothing of time. If the title
were not ready by the day, the purchaser was freed ; and
if either party failed to fulfil his part of the contract the
remedy was an action for damages. In equity the case
was just the reverse. Although time might be of the
essence of the contract, yet ordinarily speaking it was
not ; and if ene party brought an action for damages,
the other party filed a bill in equity. Well, now, if
this bill passed, the court of law would have two rules.
He did not say that if the country determined that one
court should decide both law equity, there would not
be a great saving both of time and money ; but he said
that they must give courts machinery to carry into
effect the duties which they imposed upon them. In
the case which he had stated, the courts of law, retain-
ing their present jurisdiction, were to be left to decid-
upon equitable grounds against their own rule. If he
were to enter further into detail, the result would be
to add the force of the objections which he had
urged. His object had been to place the matter in
such a light as would enable their lordships to arrive
at a just conclusion, and his excuse for having thus
trespassed on their attention was that they never
had a bill of greater importance brought under
their consideration. The noble and learned lord con-
eluded by intimating, in a tone which was scarcely
audible, that there were two clauses on which he in-
tended to take the sense of the house.
The LORD CHANCELLOR said his noble and
learned friend had referred in committee to five or six
different provisions of a bill containing more than a hun-
dred clauses, stating that there were only two on which
he intended to take a division ; and though he was very
unwilling to trouble their lordships at that moment, he
could not leave his noble and learned friend's observa-
tions unanswered. What was the history of this mea-
sure ? Two years ago a bill was passed, founded on the
report of a commission of learned persons, making most
extensive changes in the proceedings at common law.
His noble and learned friend near him (Lord Brougham)
would bear him out in saying that the working of the
provisions of the bill was most satisfactorily. On a
recent occasion his noble and learned friend attributed
to that cause the diminution in the business of the
county courts as compared with that of the superior
courts.
Lord BROUGHAM--Not to the improvement of the
article, but to the lowering of the price. (Laughter.)
The LORD C EIANCELLOR continued—The present
bill was founded on a second report of the same com-
mission, and had received the approval of a select corn-
mitttee of their lordships' house, who went through it
clause by clau-e. Now, what were the objections of
his noble and learned friend ? First, he expressed a
doubt as to the expediency of allowing parties to have a
cause tried by a judge without the assistance of a jury.
He (the Lord Chancellor) would confess that that was a
part of the measure of which he was not at first ena-
moured, because he thought that men were often im-
proved as citizens in discharging their duties as jurymen ;
but., at the same time, when a bill for amending the law
had to be introduced to the legislature, it occurred to
him that it was not fair to suitors to make them pay for
the education of the community. (Hear, hear.) The
next clause to which his noble friend adverted was oue
on which he had intimated his intention to take a divi-
sion. Their lordships were aware that, as the law stood
at present, unanimity was necessary. Now, undoubt-
edly, the clause in question, which had been introduced
after great consideration, was not that which was recom-
mended by the commissioners. He quite agreed with
his noble and learned friend that with all its anomalies
the present state of the law had not been productive of
any great degree of practical injustice. But when they
were making a change of this nature it was impossible
to give this question the go-by. What the commissioners
proposed was, that unanimity should be preserved, but
that the absurd and barbarous rule of locking up the
jury without food or fire should be abolished, and that
if at the end of 12 hours the jury should not have agreed,
having had reasonable refreshment in the meantime,
then the matter should drop and it should be open
to the parties to have a new trial. That provision under-
went great consideration ; and his noble and learned
friend the Lord Chief 3 ustice suggested that the twelve
hours should be retained, and if at the teal of that time
the jury were unanimous well and good, but if they were
not and ten or eleven of them, five to one, were of one
mind that should be a good verdict. There might be
an obstinate man on a jury, who might be influenced
by the consideration that if he only held out
for twelve
ntl‘e, toofbtehreeamsnatntaehrle; aifnhdeskunchewa
hoursiierso
that at the end of the twelve hours the other jurymen
orteildwobueldinboreeallikeell;l
d complained of whit lie called the arbitra-
would carry the verdict itgaist him. His noble and
learned friend
clauses.frien
Any one who haul been in the habit of
attendin, the courts of law must be aware that many
came before them which it wee impossible to try.
casessue e e an action was brought by a builder for work to
amount of 5,0001., made up of a number of small
it was not possible to decide the matter in court,
items,tseeinghe: a'
that every item would have to be investigated se-
parately. The ordinary course was for the court to refer
such cases to arbitration. By the bill power was given
to the judge, at the instance of either party, to refer the
matter to arbitration before any expense had been in-
curred. This was undoubtedly a new thing in Eng-
land, but it was not new in Great Britain, for in
Scotland it was the common mode of proceeding
with regard to accounts, and he anticipated great
benefit as the result of its introduction here. The
next provision to which his noble and learned
friend objected was one relating to oaths, a provision
which would, he thought, be received with satisfaction
by the country at large. The present state of the law
on this subject was most anomalous. Quakers, Mora-
-1 vians, and Separatists, were absolved from the taking of
oaths, and what was proposed was, that any person who,
on being called as a witness, stated that he had a con-
scientious scruple against the taking of an oath, should
be allowed to make an effirmation instead, provided the
judge were satisfied of the sincerity ',or his objection.
If there were any one principle upon which law reformers
ought to be agreed it was that there should be one suit
for one cause, in other words that one and the same
.
court should be able to do entire justice in thiet.cara4
and all that the bill proposed had been devised
la t
view. The last objection he ever expected tor He
bill was that it was a step too much in advance.
g nerally un-
friend in detail, but lie thought they
werBuriety about it :
would not answer the objections of his nobleand learned
tenable. He hopd the bill had no obsc
and to have
d of the bill, and would
I iltegsieteimmaetde objectsbe wellin
Lord CAMPBELL approve
on the third reading.
vainelv.carefully drawn,
state his reasons for doing so
ACTS AMENDMENT
CHURCH BUILDIN
The bill then went through committee.
BILL.

This bill was re•conimitted.
Their lordships adjourned at twenty minutes after
eight o'clock.

HOUSE OF COMMONS—(YESTERDAY.)
The SPEAKER took the chair at four o'clock.
The following bills were considered, and ordered to be
read a third time :—Bagenalstown and Wexford (No. 2),
Bideford Roads, Cornwall Railway, Dudley, Halesowen,
and Bromsgrove Roads, Edinburg
Roads, Londonderry
and Enniskillen Railway.
BUILDING ACTS.
Sir J. SHELLEY asked the Secretary of State for the
Home Department when ho intends to bring in a bill to
amend the Metropolitan Buildings Act.
Lord PALILERSTON- said the bill would be for the
istenciract of baildiag Data gagath and 110 cola ut