The Sun.
London, England, 1857-02-24 00:00:00

IMP

P.IAL PAR LIA.IVI

HOUSE OF LORDS.—(YEsTERDAY.)

PROBA.TES AND LETTERS OF ADMINISTRA-

TION BILL.

The LORD CHANCELLOR moved the nccond read-
ing of this fell, w Lich he said was: intended to rem: ely
t.o evil which had been cried out against fur many S eats
as art-it g bents the numerous pet y jurisdictions (for the
:oast part ecclesiastical) existing throughout the country
in regasi to the granting of probst es of wills and let`era
of administration. As he stated on a former evening,
there w.re no fewer than a hundred different courts
which cx,rcied this jurisdiction, besides which there
were other courts whose jurisdiction was rather of a
theoretical than a practical character. There was the
Prerogative Court of Canterbury sitting in London, and
the Prerogative Court of York sitting at York, each of
which ex srcised in iteown province a certain jurisdiction
in cases where the deceased possessed property out of
the locality over which the jurisdiction of the inferior
court Extended. This was a state of things which in
practice was found to be extremely inconvenient.
It was obviously inconvenient that the next representa-
tive of a person dying in Lancashire, for instance,
should not know, as regarded third parties, whether the
probate should be taken out at Lancashire or at the Pre-
rogative Court at York. Another grievance in the con-
stitution of these courts was that they all possessed con-
tentious jurisdiction. There was a great number of other
.small matters requiring remedy, but with two points
would he content himself, the inconvenient multiplica-
tion of small courts throughout the country, and the in-
convenient mode of procedure in the larger court in Lon-
don. In the first place, he proposed to abolish all the
existing courts ; because, supposing the present Prero-
gative Court to be as perfect as its greatest admirers
could wish, stall he thought it was the general opinion
that the court should be her Majesty's Court of Probate,
and not the court of any ecclesiastical authority. He
therefore proposed to abolish all heal jurisdictions, and
to constitute one Queen's Court of Probate, reserving
the question of who was to be judge for future con-
sideration. As he did not see where the present practice
of the Prerogative Court could be improved, he proposed
that it should be adopted, giving the judge power to
make new rules when they might be necessary. In order
to exclude all suspicion that the patronage had anything
to do with legislation, he intended that the whole of the
present staff of the Prerogative Court should retain their
offices, subject only to the usual reasons for retirement.
But the great change he proposed was that, instead of
having disputed questions of fact tried in the present im-
perfect mode, they should be decided by oral evidence
taken before a judge, oran issue sent before a jury. With
regard to matters of detail, they should all be left to the
judge; but with regard to the great questions, he pro-
posed that they should be dealt with in the well known
constitutional mode, viz., by the issue to be tried on the
circuit; so that it. would have the advantage at once of
the intellect of the judge and the common sense of the
jury. He proposed that all non contested matters should
be left where they now were, and that they should
be confined, as they now were—an exclusive privilege
to the proctors and advocates of the courts. This part I
of the plan would, no doubt, create great difference of
opinion, maiely on account of the exorbitant fees alleged
to be charged by the proctors. Compensation had been
suggested, but the case of the six clerks showed what ex-
orbitant sums might be paid under that arrangement ;
he therefore proposed instead that the proper authority
should have power to reduce the fees. His opinion of
the proctors was that they filled a very useful interme-
diate place between the court and the public, and that if
their office were abolished some equivalent must be
created in connection with the court. When they came
to contentious business he proposed that the cases should
be thrown open to the profession generally. He in-
tended to abolish all the district and diocesan courts, but
to, retain the district offices for the registration of
uncontested will's. The number of districts would
be thirty-six, instead of twenty-seven, as at pre-
sent. Uncontested wills he proposed to be fled in
the district, and a list sent up every fortnight to London,
and in case of small wills c attested, say under 2001., he
proposed that jurisdiction should be given to the county
courts. With respect to personal and real estate, he did
not propose that the distinction now existing shoell be
removed, but that in case of dispute the inheritor of real
estate should be cited before the Court of Probate. He
proposed also that there should be a place of security in
London in which wills might be depo-ited during the life
of the testator. There were besides the points to which
he bad alluded a number of other details into which he
would not then go. There only remained for him to jus-
tify the appointment of the judge of the new court. He
proposed that the judge should be one of the Vice-Cban-
cellors. He was quite aware that in stating this be
should perhaps raise a storm of opposition in many quar-
ters. The Court of Cbancezy was undoubtedly very
unpopular in many quarters ; even, however, giving tho
utmost credit (for the sake of argument) to the views of
these persons, he pointed out that he did not transfer the
probate jurisdiction to the Court of Chancery, but merely
gave to one of the Vice-Chancellors of that court the
office of judge of the Court of Probate. This was doing
more than what had already been done in a case of bank-
ruptcy jurisdiction, in which, up to the time of the ap-
poiuttnent of the Lords Justices, one of the Vice-Chan-
cellors had acted as a Court of Review. He would pro-
ceed to state why he selected a Vice-Chancellor as judge.
He felt perfectly sure that he should have had an easier
task, so far as outcry from an opposition went, had he
preferred the establishment of a new court, with anew
judge at a large salary, and all the paraphernalia of a
court of justice. Originally he had framed the bill with-a
view to the creation of such a court, but in considering
the matter and the amount of duty which would be cast
on the judge of such a court, he had felt that be could not
ask their lordships to pass such a bill. The j edge of the
Prerogative Court sat for the disposal of non-contentious
business 25 times—or at the outside 30 times—during the
r year, and the average length of these sittings was two
hours each. At other times the judge was occupied in
deciding contentions cases, in which having to wade
through long masses of written evidence great length of
time was necessarily occupied. All this would, however,
be swept away, and there would be only left to the judge
the one contentious business and the duty of deciding,
where a verdict was unsatisfactory, upon the granting of
a new trial. There being then a necessity for a new
judge, whose duties would be thus light, the question
was, to whom should those judicial duties be given ? There
was only achoice between one of the Vice-Chancellors and
a common dew judge. Between these two personages
there did not seem to him room for a moment's hesitation.
The common law judge bad to go on circuit twice, and
would not improbably soon have to go once a year,
while the Vice.Chaticellor was constantly on the spot.
Added to this, there was every reason to suppose that
a Vice-Chancellor would have time to take the extra
duty. Their lordships were aware that Lord Truro,
when he held the great seal, issued a commission to
inquire into the state of Chancery practice. Upon the
report of that commission, his noble and learned friend
(Lord St. Leonardo) had introduced two measures which
completely altered the state of things in the Court of
Chnncery. Those who knew nothing of the subject
blamed the court for its delay ; but those who really un-
derstood the matter, the celerity with which that court
got through its business, at the present day, was perfectly
surprising. Taking the number of suits commenced dur-
ing the years which had elapsed since the passing of
those acts, he found that the average number per year of
suits instituted was between 2,500 and 3,000. These
suits were disposed of by the Master of the Hulls and
the three Vice-Chancellors, whose industry and learning
were most exemplary—(hear)—and this was done in such
a manner, and with such despatch, that in Hilary Term,
1856, there were but 519 causes its arrear, and in Hilary,
1857, there remained only 245. (Hear.) Occasionally
it even happened that one or another branch of the court
had actually got through all its business. Hence, he
thought that he had sufficient ground for thinking that ,
this jurisdiction might be given to a Vice-Chancellor.
He ought to state that no extra salary or privileges
would be bestowed upon the Vice-Chancellor. Upon the
subject of the granting of new trials he would say a few
words. This power he proposed, as he bad already in-
timated, to vest in the Vice-Chancellor. In cases of
misdirection, no doubt a court of common law would be
better enabled to judge of the necessity of granting a new
trial, but these were not the kind of cases which would
be likely to arise. In any other case the care and atten-
tion which the judges of the Court of Chancery habitually
gave to the question of the granting of new trials would
render the Vice-Chancellor a competent and proper per-
son to exercise the discretion of granting or withholding
the right of further proceedings. (Hear.) Such were
the chief provisions of the bill, which, however might be
its demerits, was, he thought, a better measure than
any of its predecessors. (Hear, hear, and laughter.)
A noble and learned friend of his had introduced a mea-
sure in 1844, in which it was proposed that there
should be twenty-seven diocesan courts, each with a
contentious jurisdiction, and two archiepiscopal courts.
The diocesan courts were to be at liberty to send their
cases, if they thought fit, to the archiepiscopal court of
their province, and the archiepiscopal court of York
might send its causes to the court of the Archbishop of
Canterbury. To add to all this confusion, the old system
of pleading and evidence was to be retained. Against
this measure the present Lord Chief Justice and Lord
Cottenham entered their protest in the journals of the
house. Another measure was afterwards introduced by
Lord Cottenham ; but that proposed the erection o f
a
new court, with the expense of an entirely fresh judicial
machinery. In the year 1854, he (thehiLor d Chacel-
lor) introduced a bill on the subject, w passed that
house. In that be proposed to transferch testamentary
jurisdiction to the Court of Chancery, and in theory he
believed that that measure was a correct one. Nothing
was more unsatisfactory than to have courts acting under
different jurisdictions. However, it was not always
easy to carry out in practice that which was best in theory.
Since then, in the fast session, a fresh bill had been
introduced in the other house with, it was right to say,
his entire concurrence. That bill proposed to erect an
entirely new court of probate, and it got over the diffi-
culty of the want of sufficient business to occupy such a
court by transferring to it a portion of the business trane-
acted by the Court of Chancery. This bill had shared
the lot of its predecessors, and hence the introduction of
the present measure. In this he had endeavoured to avoid
the less satisfactory portions of those attempts at legis-
lation which had preceded it. His lordship concluded
by moving the second reading of the bill.
Lord ST. LEONA.RDS complained of the perpetual
changes of intention which were manifested in thesetira-
sures. First, the jurisdiction was to be given toth eeyqicstil .
Mme
then there wee to be a separate court;
and
back to the original idea, with but little variation, for a
judge of an equity court was to take the probate cases.
When the idea was first started of giving
this j arisdie-
tion to courts of equity he had opposed it, but aft tehne
same three urged that, if given, it should be g
d bhis
to one judge only That clause was then opposed bad
noble friend on the woolsack, who now, however' bedid
fully adopted it. But as be bad done formerly p 0

NT. Low oppose tLi.s transfer of jurisdiction to an equity
judge. The present equity system, notwithstanding--
what ‘Nas said ti the contrary by those who were
ignorant of what the duty of this court consisted, was
worl.ing aclali,ally. He feared that the intiodu.aion of
ne-w duties 11:1:1.t derange its working, and hone„ his
or.p3;,ifi,n. 13_sides, there now existed a cxnpetent
judge kf a tostaulentary court. What wns to he done
with r,.-p,cl to him? li big (Alice were destroyed, be taust
be con.:,eneated. Ile coul I not understand why the judge
of the Prercgativo Court was allowed to spend his days
int retirement, his pay being continued, and a Vice-
eown ,ancel-..r appointed to do his wcrk in additicu to his
changes that. va sh
nodn e e
voefrt tae
been p
mostr
proposed. I
wanton andt
worldun b
reee ssea rya
change for no purpose, and by which the country a-null
gain H
to take from loeiiree.at- nothirg whatever.
noble i
wof a
and learned
estate es
te i friend
proposed a
this country a right' which they had hitherto always
possessed—the rig
ht to have the validity of a will tried
by issue. This was a vested right, which
he whielo belonged to
them by the law of England, and a
estatei till ajurY of say that they
on to
osted that such
theircoun-
trymen
pwenrusoldnannato
yalideldaluwp real ble n
a
Rernintimated thatand the bill
TheLhoand
DdecchnieAd againstcxEL Ltoh
would not have the effect which the noblelearned
lord supposed.
Lord Sl'. LEONARDS said he certainly so under-
stood the matter. As regarded the extension of probate
of real estate, he had before observed, and would now
repeat, that if they consented to that they might rest
assured that the Chancellor of the Exchequer would,
in addition to the succession duty, favour them with
a probate duty on real estate. He would never agree
that where there was no contention the heir-at-law
should he called in as a party to a suit with regard to
the testator's real estate. It must be remembered that
those who were interested in the personal estate were
sel loin entitled to the reality. With regard to the 35
district courts, he would like to know what the officers
were to receive ?
The LORD CHANCELLOR said it was proposed to
pay them by salary.
Lord ST. LEONARDS—He would be glad to be
informed, then, what compensation was to be paid, and
what would be the amount of the salaries. Even though
the business were non-contentious, the duties to be per-
formed would often be very important ; and it was de-
sirable to ascertain whether the registrars were to be
simple clerks or men of experience and capacity. In dif-
ferent pasts of the country, where there were neither
proctors nor judge, the registrars would, as it appeared to
him, be called upon to perform in many respects the duties
lof both ; and the more the district courts were multiplied
the more mischief might they inflict. He would reserve
anything more which might occur to him until the bill was
before the select committee. He could assure his nobleand
learned friend that it was with great pain that he differed
from him, and, being convinced that great pains had
been bestowed on the preparation of the measure, he
would be happy to render any assistance in his power in
endeavouring to make it acceptable to the country.
Lord LYNDLITTRST said he had intended to make
some observations upon the bill at this stage of its pro-
gress, but on looking round the house, he had been led
to make a calculation, the result of which was, that there
was just a third of a peer to each bench ; and, as he had
a great objection to addressing empty benches, he should
postpone his remarks till the measure was more advanced.
Lord CAMPBELL said he should have followed the
example of his noble and learned friend were it not that
he was about to go on circuit, and that before his return
the bill might have passed their lordships' house. His
noble and learned friend on the woolsack might have
spared himself the trouble of proving the necessity of a
change ; for it was agreed on all hands that the
present state of things was discreditable to the coun-
try. The question was, however, how the law was to be
amended ? He must say he rejoiced that the bill of his
noble and learned friend who last addressed the house
did not receive the se.nction of theLegi-lature, believing,
as he did, that it would have traduced disappointment.
At the same time he was not at all satisfied with tie
measure before the house, the sum and substance i f
which was that where there was a contested probate the
case was to become a Chancery suit. The operation of
the bill would be this ; when the case came before the
Vice-Chancellor, be would first have to see whether
there was ground for an issue or not, which be would
ascertain by means of affidavits or of viva voce evidence.
If he thought there was sufficient ground an issue would
be directed accordingly ; and, after the matter had been
before a jury, it, would come back to him, and he would
say whether he were satisfied or not. After that, there
Height be an appeal to the Lord Chancellor or the Lords
Justices, which would b argued like any other appeal
in the Court of Chancery ; and lastly, an appeal to tbat
house. Ile did not believe that mode of proceeding
would be at all better than the present state of
things, under which there was first the proceedings
in the Prerogative Court, and then an appeal from that
court to the Committee of Council, whose judgment was
final. His noble and learned friend (the Lord Chancel-
lor) seemed to regret that such matters were not referred
even nominally as well as really to the Court of Chan-
cery. Having ceased to be a common law judge his
noble and learned friend seemed to belong to that sect
of lawyers who thought that the Court of Chancery
should absorb every other court. The language of that
sect was, " We will absorb you ; courts of common law
may still try an action for assault, or for the value of a
cask of beer sold and delivered, but we will not allow it
to try any question involving the validity of wills or
other matters of importance." Much as he (Lord
Campbell) might value the Court of Chancery he was
not willing tc be absorbed in it, and be did not
wish to see the Court of Probate, any more than
the courts of common law, subjected to such a process.
His noble and learned friend would do well to r.ci.l-
- that the Court of Chancery was by no means so
popular that its absorbing power was likely to be viewed
with favour by the public. (Hear, hear.) Hills wished—
as he was sure be did—to see the professed object of the
bill carried out, let him abjure the intention to make the
Court of Chancery the court of probate, and propose to
establish a new Queen's Court independent of the Court
of Chancery. He trusted that the bill would be greatly
improved in committee, and that the present session
would not pass away without witnessing the accomplish-
ment of the object.
The LORD CHANCELLOR wished to say a few
words in explanation on one or two points. He had
never intended to deprive an heir-at-law of his right to
have the validity of a will disinheriting him tested by the
verdict of a jury, and if there was anything in the bill
to that effect he would be ready to alter it. As to the
appeal, the reason why he proposed to make it to their
lordships' house instead of to the Privy Council, was
that there might be cases in which real, esti ,te was in-
volved as well as personal, and he doubted whether
their lordships would be satisfied to have appeals on the
subject of the freehold inheritance of land in this king-
dom referred to the Privy Conned. He would not dis-
cuss the other objections, as he thought they were all
matters for the committee, including the question as to
the judge. lie did not think be would have been jus-
tified in proposing the appointment of a new judge, when
the work could very well be done i.y one of those at
present existing.
The bill was then read a second time,
ROYAL MARINE FORCES BILL.
This bill passed through committee.
CHIEF CONSTABLES' BILL,
This bill was read a second time.
Their lordships adjourned at 10 minutes past 8 o'clock.

HOUSE OF COMMONS.—(YiesTaRDAY.)
THE BUDGET.
ADJOURNED DEBATE.
Mr. JAMES M'GREGOR then resumed the ad-
journed debate on the budget. He disclaimed all party
feeling with reference to the financial statement, and be-
lieved that all the country and the house required was,
that while due regard was paid to economy, the adminis-
tration of public affairs should be maintained in effi-
ciency. There could be no doubt that the country, tak•
in g its tone from former decisions of the house,
that the income tax should cease in 1860. If that was
admitted he thought that it was the duty of the Chancel-
lor of the Exchequer to give the house some idea of what
his estimates would be in the intervening period. That
right hon. gentleman adjusted his finance by the imposi-
tion of taxes upon sugar and tea. Ile (gr. M'Gregor)
was not a strong advocate of those great ehanges which
took place in the finances of the country upon the adop-
t tion of the celebrated resolutions of November, 1352 ;
but -he rejoiced to say that the result bad been
highly successful—(hear, hear)—and he at the same
time frankly confessed the intellectual superiority of
those gentlemen who saw the wisdom of abrogating
the duties on a multitude of petty articles, and of fixing
attention upon those great articles of commerce which in
fact sustained the revenue of 8 country.ttnhh:eethee osmeueentof
iy
1 lasyhaToarunhellicsecieso
resolu-
tions of November, 1852, were passed by an overwhelm-
icrnmc affectingea
ij i :trrhi toeyf,gteahnneedrEa
Exchequer's
ceh couldecipolicyu eor
f,
dis-
turbed without some very substantial reasons. TheB-
- its perpetuation. (Rear, hear.)
year 1857.8 seemed to hold out a prospect of the income
tax being made perpetual, but the country was opposedme
He believed that if it
were continued beyond 1860 it would be found to be
worse even than oppressive,inquisitorial,
and and
and that difficulties would a
rise with regard to it which
had never yet been mentioned. Notwithstanding the
flattering manner in which the First Lord of the Trea.
\
Lury was received during the recess by the merchants of
Liverpool and Manchester, no sooner was Parliament
opened than a multitude of petitions from
. _ them_
were presented for a remission of the vlidarb'eTb7l
obliged to
so'
The Government found that they
yield to the demand for reduced
estimates were framed which permitted the remission
utthose estimates did not
asked for by those petition:.
the 'vtaoxuation, and new
weight of the country's
afford a fulcrum on 121
and every vote in favour of rigid
be against a deficiency,
sa 0
lice believed that every vote would
to army and navy might he
oebcloingoanitiyo.nslchoented rpest.w
point Lila below that at which they were
reduced to
fixed in should keep up in perpetuity suoh este-
Leg peace, w
these estimates. lie had yet to learn why, dur-
ing
Kildare. He hoped that the house would
bliseeoeuts as the camps at Aldershot, Colchester, and
rye the amendment which bad been proposed
tCeuerragrighlit hon. gent eman (M.r. Disraeli) send Lure
the and that such reductions of expenditure
would be effected that we might rely on the fulfilment of
all the engagements of the country and the extinction of
the income tax in 1860.
Lord J. RUSSELL—I should have been satisfied with
taking but little part in this debate—by even giving a
silent vote in favour of going into committee of ways and