The Sun.
London, England, 1859-07-13 00:00:00

PRIVATE BUSINESS.

= . The following bills. were readasecOnd time :—The
Bereford aucl Brecon Railway, and Wansbeck Railway.
Tr-11RD READING*.
The following bills were read a third time and passed :
Pneumatic Despatch Company, Dundee and Newtyle
Railway, Salford Borough, Caterham Railway, Forth and
I Clyde Navigation, .and Maybole and Girvan Railway.
A.dtscUSSICUI arose upon the Birkenhead and Lancashire
and Cheshire Railway Bill, but it was eventually read a
thii~ time and passed.
SALE OF GAS BILL.

• This bill passed through committee, and was reported
mithout amendments.
IRISH LAW COURTS.

The Marquis of CLANRICARDE moved for certain
returns relative to the court of law in Ireland, and the
•numgey of writs issued for trial by nisi pries in each court
frem.Jan. 13.1858, to Jan. 1, 1859.—Ordered.
NEW SMITH WALES.
" Earl of CARNARVO N asked whether it was the
intention• of the Government to introduce during the pre-
sent session, any measuro for the partition of the debt of
the colonies of New South. Wales and Queensland ?
The Duke of NEWCASTLE said he did not propose to
introduce any measure on the subject here, but to leave tho
matter to be settled in the colony.
COURT OF CHANCERY.

Lord LYNDHURST then rose to move for the appoint-
ment of a select committee to inquiio into the mode of tak-
ing evidence in the Court of Chancery, and its effects. He
said—The question to which I wish to call your lordships'
attention is of very considerable importance. I shall endea-
vour, however, with reference-to the statement lam about
to make, not to use an unnecessary word. My noble and
learned friends around me will be able to supply my omis-
sions, and also to correct any errors into which I may unin-
tentionally fall. In the administration of justice the first
step is to ascertain the facts, and then to apply the law, The
machinery for the purpose of ascertaining the facts ought to
be such as is well calculated to elicit the truth, and to per-
form that cheaply and at a convenient time. That is very
well and very satisfactorily accomplished in the courts of
common law. When the parties are at issue they attend be-
fore a tribunal with their witnesses, and the witnesses are
examined and cross-examined in the presence of the tribu-
nal. The observations of counsel are made upon the case,
either to the court or the jury, as the case may be, and
while the impression ,of the evidence is fresh upon their
minds they come to a determination. The result to the par-
ties is—to make an allusion to a subject of a different de-
scription--cite mors aut victoria lea. Now, with respect to
the Court of Chancery, I am sorry to say that at one time
the course which it pursued was directly the reverse. That
tourt, unfortunately, proceeded according to the forms of
the civil law, which were not calculated to elicit the truth,
and certainly not calculated to elicit the truth 'either in a
convenient time or at a moderate expense. When I left that
Court the course of proceedings was this—they adminis-
tered written interrogatories to the witnessess and cross -in-
terrogatories at the same time. The cross-interrogatories
were drawn up before the answers were given. The original
interrogatories, therefore, for the purpose of cross-exami-
nation were wholly inefficient Various attempts have
been made to alter that proceeding, and though these at-
tempts have generally failed, I think they failed because
they were not sufficiently extensive. They were attempts
merely to patch up the system. The last attempt of that

kind was made in 1854 by a commission that sat for that

purpose. They suggested many alterations, and among
others that alteration in the course of proceeding to which
I am. about to ad%ert. But, my lords, they recommended
it merely as an experiment, as a thing to be tried—" ten-
tative'.' is the expression made use of. Five years have
elapsed since that alteration was made, and I am told by
practitioners in the Court of Chancery that the experiment
has amounted to an entire failure. Previously to the com-
mission to which I refer the mode of examination was
this :—The witnesses were examined and cross-examined
orally before examiners. That led to considerable expense,
and one objection, but the main objection, was this—and
my noble and learned friends must feel the importance of it
—that the evidence was taken by one set of persons and the
case was to be decided by another set, who had no oppor-
tunity of seeing the witnesses or judging of the correctness
of their testimony by their demeanour. Then the exami-
nation was by affidavit, and I appeal to my noble and
learned friends around me whether that is not the worst
mode that could possibly be established. Many of your
lordships who aro not accustomed to the course of proceed-
ing in courts of justice may not be aware of the manner in
which these affidavits are framed. The solicitor, or the
clerk of the solicitor, goes to a witness, who is a willing
witness, and puts to him leading questions for the purpose
of drawing out those facts that are servieeable to the cause
of his client, but he does not put a single question that may
tend to elicit a fact that may be disadvantageous to his
client. When this is done, the process, which is called by
the profession " cooking the affidavit," begins. The soli-
citor draws the affidavit in 'the most artificial form. He
points and extends all the material facts in favour of his
client, and every word that may possibly be of disadvan-
tage to his client is avoided. I have not exaggerated in
the slightest degree, my lords, in the statement
which I have made. I have conversed with prac-
titioners who know this so well that they quite laugh at
any doubt being entertained with respect to the course of
proceeding. The case does not stop here. The solicitor
who draws the affidavit is generally a very acute practi-
• tioner, and understands his business perfectly well ; but he
is not satisfied with his draught. He thinks it must be
touched up by a more experienced and more dexterous hand,
and takes it to counsel to settle it, as it is called. My noble
and learned friend on the woolsack, who has a great deal
of experience in the courts of common law, will, fthink, be
able to carry back his recellection to the time of Lord Ellen-
borough. If any person, in the time of Lord Ellenborough,
in Et court of common law, said a word about counsel settling
an affidavit, the learned judge would have immediately
burst out and said, " What do you mean ? Counsel to be
tampering with the evidence of the witnesses ?" So that
no person in a court of common law would venture to talk
of settling an affidavit by counsel. But this in the Court
of Chancery is encouraged. The cost of settling is allowed
in the taxation. It is sanctioned by the Court. What is
the next step ? When the affidavit is perfected in the man-
ner I have stated, freed from all difficulty, " admirably
&awn" as is the expression of counsel, the party attends,
21.0 t before a judge, but before an officer who swears' this
affidavit. It is read over to him, and it is altered accord-
ing to the circumstances. The witness is careless or atten-
tive, according to circumstances, while the affidavit is being
reul, and after it is read he signs it. Now what is the oath ?
` Is that your signature ?" " Yes " " Is the affidavit true ?"
Yes. Is it satisfactory that an oath should be adminis-
tered in that form ? What is the form of oath upon the ex-
amination of witnesses ? " The evidence that you shall
give shall be the truth." But in the case of an affidavit the
only question is,
an "Are the contents of the oath true ?"
Without
Y great stretch of conscience the party swears
that the contents are true, although the affidavit does not
contain the whole truth. Now, this is the objection which I
have to make to evidence by affidavit. I appeal to my
noble and learned friend on the woolsack, and to my
noble and learned friend on. the cross benches, whether
they do not admit the force of my objection. Then
what is the next step ? The affidavit is filed.
Copies after copies of these affidavits have to be supplied.
Ysur lordships will mark that I have been mentioning only
one affidavit, but there may be 20 in a cause and the course
of each is the same. Now, my lords, I shall be told that a
remedy has been proposed for this, and I wish to consider
what that remedy is. The remedy of cross-examination.
But first let me mention the fact that if I call a witness in
a common lawcourt Ipay for that witness. If he istrosa ex-
amined by theadverseparty I pay for their cross .examination.
If the cross-examination should extend for a week I pay for
the cross-examination, because it is mr witness. What is
the case in the Court of Chancery ? If a witness make an
affidavit and the other parties wish to cross-examine, they
have to find the witness, bring him before the court, and
attend the cross-examination. At whose expense.. Q The
whole is at the expense of the cross .examiner. Itsntot
(s
at
this
the expense of the party whose witness he is, and tends
to prevent the exercise of the power to cro.,s-examine. That
is only part of the evil. If I am an unhappy party in a
Chancery suit ants want to exercise the power, I have to go
to the, et:.inituer and say, " I want to cross-examine such a
witness." The examiner says, " I must look at my book
and see which is the first open day," and having looked
he says, "My first open day is two months hence." One
of the,' exeminel.s was asked by a member of the coMmis-
sion on of February, "Look at your book and tell
us which is your first open day." The answer was, j" The
6th of May." Another examiner said, " Hy first open
'day is .earlier--it is the 3d or 4th of May." lii both
cases mire than two months afterwards. Perhaps the wit-
p s is /it t at home. Possibly he keeps out of the way, read
cannot bs subpoenaed to attend in time. The examiner has

to appoint another day, and two months more elapse. At
last the witness attends, and when he attends this further
frequently happens: the counsel are not ready; the oppo-
site counsel is engaged in court ih an important cause. The
examination is again poefeeoned for-two months. "Does
this happen frequently!' the.eommissionereetektd an exa-
miner. ' Frequently," was the answer. "Does the delay
sometimes extend over several 'Tenths?" "Frequently,"
was the answer. Some nobly tord—l do not know whom—
moved for a return upon this subject. I looked over that
return, and I found in one year 264 non-attentinhces. But,
suppose that at last the examination takes place. My noble
and learned friend on the Woolsack knows pretty well what
the course of cross-examination is in a common law court,
and how peon counsel are to be discursive, even under the
superintending authority of the judge. What is the fact
before an examiner ? If the examiner says, " Do you
think this question material?" counsel replies, " Mate-
rial I you have no jurisdiction to decide whether it
is material or not; the act deprives you of any such
jurisdiction." Thus the cross-examination goes rambling
on from one irrelevant point to another, and' your lordships
may judge of the expense of the proceeding. Then as to the
effect;.of the examination. It is taken down narratively by
the exathiner—not question and answer. The Court does
not see whether the witness answers the question or omits
to do so, The evidence is taken in the same way as a judge
takes evidence in trying a cause. It is very well for a learned
judge to incorporate question and answer, because he sums
up while the evidence is all fresh inhisrecollection. He can
supply an omission. He can give the proper construction
to a phrase. Nothing can beleft indoubt because that doubt
can be supplied by his memory of what took place before
him. But nothing of the kind occurs when the examination
is handed over to another tribunal which is to decide upon
the facts, and lam told by authority which I consider un-
impeachable that it not unfrequently happens that counsel
employ shorthand writers to take down the evidence, not to
lay before the Court, but for their own guidance, and that
evidence, so taken, not unfrequently differs in essential
particulars from the evidence taken by the examiner. But
the main objection is that the Court has no means of
judging of the demeanour of a witness, his hesitation, his
fencing with the question, and the many other cir-
cumstances which tend to betray a witness who
is not speaking the truth. Can your lordships be sur-
prised, after what I have stased—and I have not exagge-
rated anything—that parties are not willing to go through
the-process of cross-examination, considering it almost use •
less, very expensive, and very dilatory ? If you try what I
have stated by all the tests which are possible, you will find
that the whole proceeding is not calculated to elicit the
truth, but directly the reverse, and that it' is neither cheap
nor expeditious. The propositions hitherto made apply to
evidence in causes on hearing, but there is another branch
of the Court of Chancery to which I wish to refer—viz.,
with regard to interlocutory motions. Questions of the ut-
most interest are decided by the Court on interlocutory mo-
tions. How does the Court proceed ? Entirely by affidavit.
The party who makes the motion files an affidavit. The
other party answers. Then there is an affidavit in reply.
Then, perhaps, an affidavit in rejoinder, in rebutter or sur-
rebutter. There is no rule fixing the number of affidavits, and
I am told that sometimes they are so numerous counsel have
not time to read them through, but have to guess at the facts.
The parties may be examined and cross-examined before the
Court, as in the courts of common law, if the Court thinks
proper; but it is the exception. It is not liked in the Court
of Chancery. The practitioners of that Court are men of
extraordinary talent, but they -are not accustomed to the
examination of witnesses; they are not handy at it. They
put in a common law barrister to assist, but I am told that
while these examinations go on the state of the Court is
anything but edifying. I refer to that for the mere purpose
of saying that, although in one or two cases in the course
of a session an examination takes place in the Court of
Chancery, for the reason I have stated or some other rea-
son, it is an exception to the general practice and not the
general rule I began by stating, and I repeat it because it
is essential, that the practice to which I have adverted
arose out of the report of the commissioners of 1854 ; but
the commissioners, in recommending the alteration. said,
to use their language, " what we suggest is tenta-
tive, and we can come to no conclusion until the experi-
ment has been tried." For four years the experiment
has actually been made, and the result is that which I have
stated. A noble and learned friend of mine has asked me
what I would suggest. I would suggest nothing, but I
wish to have an inquiry by a committee or a commission,
as I cannot tell what should be the remedy until 1 know
'the extent and nature of the evil. Now, my lords, the
motion which stands in the paper in my, name is for a
select committee to inquire into this subject, but whether
the inquiry takes place through that medium or by means
of a commission, it is not for me to determine. That
is a question which it rests with my noble and learned
friend on the woolsack to pronounce a decision.
The effect of intrusting the investigation to a committee
is likely to be that it will be impossible to legislate on
the subject during the present session, and that
their labours may not draw to a close until even
late in the ensuing session ; whereas, if a corn
mission be granted, the inquiry may proceed without
interruption, and a bill introduced in the course of next
session, providing a remedy for the evil to which I have
drawn your lordships' attention. But, however that may
be, my lords, my present motion is for the appointment of
a select committee to inquire into the mode of taking evi-
dence in the Court of Chancery, and its effects, and to report
thereon. (Cheers.)
The LORD CHANCELLOR said that if his noble and
learned friend would undertake to serve on a committee or a
commission he should give to the appointment of either the
one or the other a cordial support. His noble and learned
friend, in addition to his great statesmanlike and scholar-
like accomplishments, was profoundly versed in the history
of common law procedure ; and, while nobody was more
capable of pointing out the inconveniences and evils which
resulted from the present system of taking evidence in the
Court of Chancery, he must, he 'thought, admit that that
system had within his own recollection been marvellously
improved. He (the Lord Chancellor) remembered a period
when bills in equity told the same story over and over
again, and each time more obscurely than on the
previous occasion. A similar prolixity distinguished the
answers, but he was happy to be able to say that both the
bills and answers which he had lately read were simple,
reasonable, grammatical, and perspicuous. It could not,
however, be denied that, so far as the examination of wit-
nesses was concerned, the present system of .the Court of
Chancory was imperfect. A proposal had been made for
the appointment of an examiner, with the view of rendering
it more efficient, but he felt obliged to confess that proposal
had turned out to be a failure, and for this reason, that no
preliminary proceeding had been established with the view
of ascertaining the points to which the examination was to
be addressed. He had simply to say, in conclusion, that he
hoped his noble and learned friend would lend his invalu-
able assistance to remedy the evils to which he had adverted.
Lord CRAN WO RTH, while admitting that the present
system of taking evidence in the Court of Chancery was in
some respects open to objection, contended that it was in-
finitely improved compared with 'that which it had been
some years ago. He was quite prepared to admit that the
best course to be adopted in those cases in which there
arose a bonn fide question of disputed facts was to summon
the parties to be sent before the court for the purpose of
giving oral evidence. He must, however, observe that in
those instances in which such a question was to be investi-
gated, nothing could be more unsatisfactory than that it
should be tried before an examiner and then reported to the
Court, and nobody was more alive to the justice of that
statement than were the examiners themselves. He entirely
approved of a motion for either a committee or a commis-
sion to inquire into the subject, in order that a remedy
•might, if possible, be applied to evils of which complaint
was very justly made.
Lord CHELMSFORD also concurred in thinking that
nothing could be more unsatisfactory for the purpose of
ascertaining the truth in cases of disputed facts than the
mode in which witnesses were now examined in the Court
of Chancery. One of the great inconveniences of the pre-
sent system was that no viva rocs examination could in
such cases take place except at the discretion of the judge,
and not even when he wished it, unless the parties to the
suit also consented to the adoption of such a course. He
thought a great mistake was made in continuing the exa-
miners at the time of passing the Act for the Amendment
of Chancery Practice. His noble and learned friend had
alluded to the great delays which existed in the examiner's
office, and if the present system continued the staff must be
increased. The examiner now was „a mere cipher. lie
had no power to check an irrelevant question, but was
compelled to take down everything upon his notes. The pre-
sent system was objectionable not only from the inconve-
nience and delay to which it gave rise, but still more be-
cause of its unsatisfactory and imperfect character as a
means of ascertaining the truth. The written examina-
tion was all that the judges had before them to arrive at a
conclusion. Now, upon paper all witnesses looked alike,
and how great, as his noble and learned friend had
said, was the advantage in having witnesses before the judge,
so that he might distinguish between the unwilling, the
false, and the truthful. The equity judges had shown great
reluctance in hearing viva voce evidence, and during the
time he was Chancellor he believedthere were onlythree in-
stances in which this course was taken. He had introduced a
bill which had passed into law, by which the judges of the
courts of equity, instead of being compelled to send contested
questions of fact before courts of law, were themselves em-
powered
to try those questions with the intervention of a .
jury. He was sorry, however, that there seemed to be great
unwillingness on the part of the judges in equity to adopt
that which was intended to be a great advantage to the
suitor in order to prevent his being driven about from court
to court to obtain justice. His objection to the motion of
his noble and learned friend was, that he appeared
disposed to occupy time unnecessarily by inquiry, whereas
the vice of the system was perfectly well known already,
and the remedy was obvious. What was waited was a bill
by which, in questions where disputed facts Were really in-
volved, the parties might at once examine the witnesses in
open court, and so the facts might be ascertained. Such a
measure, it seemed to be thought, would lead to increased
expense, but he did not think so, for it should be remem-
bered that the evidence, which was now rendered more
I voluminous by the want of power and authority in the ex-
aminers, would be considerably reduced in length by ex-
amination in open court.
Lord BROUGHAM said that all were agreed as to the
extent of the evil and the necessity for a remedy, but he
differed from his noble and learned friend (Lord Chelms-
ford) in thinking the remedy to be an obvious one. The
great difficulty was that proceedings in equity gave rise, not
to one or two issues, but to a great number of assertions made
on the one hand, and denied on the other. How were these to
be reduced into such a narrow compass that a jury could be
empanelled to try them? He did not despair of making such
an arrangement, but he was by no means confident that it was
possible, and that if made it might not lead to expense, to
complication, and to delay. This was why he wanted in-
quiry, in order to ascertain the opinion of counsel, solicitors
and judges on the subject. He was not o sanguine as to
suppose it possible to introduce viva voce evidence and trial
by jury universally, but he had no doubt that the result of
the investigation, which in his opinion would, be carried
on by commission better than by committee, would b 3 to
introduce some satisfactory improvement upon the present
system.
After a few words from Lord WENSLEYDALE,
The motion for the appointment of a select committee
was withdrawn, and it was resolved instead "that a humble
address be presented to her Majesty, praying that her Ma-
jesty will be graciously pleased to issue a commission to in-
quire into the mode of taking evidence in the Court of
Chancery and its effects, and to report thereon."
SCOTTISH UNIVERSITIES.
The Earl of AIRLIE asked her Majesty's' Government,
whether, after the
report of the ' Commissioners appointed
under the Act of 21st and 22d Vic., cap. 83, "Universities
(Scotland) Act," on the
petitions'' which were referred
tiAolatrheehm,
losnwtl,asehttlhvinastant against their ordinance c f It2th
council, such :reportt wvoeubeen submitted to her MajE sty in
shall licilabve ccinnounicated to Parliament
before her Majesty
ordinae signified her final approyal
or disapproval of the
the report of the cominissionn.iertsseovfd ,at March
t o‘av
unfavourable}
.thelyf
wished, before the report was
6,,veurnatent.opportu-
nity of fully stating their ease to the
Earl GRANVILLE regretted that he couldn not give
any definite replir to tho question. The report
was still
rind& the cimsidep 4 ation the coirdnissioners, and of tcourLe
had not yet been communicated to the Government, whose I

desire it was to act- in the fairest manner towards all per-
sons concerned.
The BIAII6p of OXFORD presented severtil petitions
against any alteration of the law of marriage.
Their 'lordships adjourned at ten minutes past seven
o'clock.

HOUSE OF COMMONS.—(YESTERDAY.)
The SPEAKER took the chair at four o'clock.
The SPEAKER took the chair at four o'clock.
NEW MEMBERS.

Mr. MILNEn Grßsox took the oaths and his seat for
Ashtn.; Mr. VILLIERS, for Wolverhampton; and Mr.
Sergeant DEASEY, for the county of Cork, on their re-elec-
tions, rendered necessary by their respective acceptance of
office under Government.

ATLANTIC TELEGRAPH COMPANY (No. 2 BILL).
On the motion for the consideration of the Lords'
amendments to this bill,
Lord DUNCAN said that the present bill was very
much like that which had been recently discussed, and he
rose for the purpose of asking some explanation
either from the Chairman of Committees or the
President of the Board of Trade with reference
to the 15th clause of this bill, which was one of the most
extraordinary description. By that clause power was
given to the Treasury and the company from time to time
to modify, rescind, or entirely alter any agreement or ar-
rangements at present in force or which might be made in
future. It was also proposed to confer other powers that
would virtually do away with all authority of the House of
Commons, in reference to subjects like the present. He
wanted information, therefore, as to the exact powers that
were to be taken by the commissioners under the provisions
of this bill; and he suggested that in cases where the
public money was voted, the proceedings should be by
public and not by private bill.
Mr. LAING said that the object of this bill was to en-
able the Government to carry out the arrangements agreed
to by their predecessors previous to this (the present Go-
vernment) assuming office. By this bill they were to
guarantee 8 per cent. on a capital of £600,000, but this
arrangement was to come into operation only on
the condition if the succees of the undertaking
The whole amount of the guarantee was £48,000 a year.
He did not think it necessary to go into the details of the
agreement which was entered into by the late Government;
he would merely observe that the bill was open to the same
objection as the Telegraph Bill before the house last
night, as it was merely conditional. A bargain had been
entered into on the good faith of the Government, and he
trusted that such being the 'case, and considering the de-
cision on the clause last night, he hoped this bill would not
receive any further opposition. The guarantee would last
only so long as the cable was in working order, and any
surplus beyond the 8 per cent. must be returned to the
Government on account of the guarantee.
Sir J. GRAHAM said that this bill certainly differed
materially from the bill discussed last night, for it proposed
merely a conditional guarantee for a period of not more
than five years. He objected, however, strongly to the
loose manner in which these guarantees had been entered
into. (Hear.) He considered these guarantees should be
entrusted to some money Minister, who would furnish the
house with the necessary explanation in reference to the
same. He did not mean to say with regard to the bill
before hon. members the preceding evening that the ordi-
nary forms of the house had not been complied with; on
the contrary, he believed these forms had been
strictly adhered to in the progress of the bill,
and , that no error whatever ha been committed
in that respect. The money clauses in the bill of last night
had entirely been printed in italics, but still, as there were
not more than 12 or 15 of these private bills printed, unless
the greatest -vigilance were exercised it was most probable
they would escape attention. He hoped that for the future
new rules and regulations would be agreed to, by which
contracts like those under discussion should be submitted
to the more careful consideration of the house. (Hear.)
Lord J. MANNERS said that these agreements were
most carefully considered by the late Government in their
corporate capacity, and were calculated to conduce to the
public interest. He wished, therefore, to protest against
, the statement made with reference to this agreement.
Ultimately the Lords' amendments were agreed to, and
ordered for third reading.