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

HOUSE OF LORDS.-(YESTERDAY.)

The LORD CHANCELLOR took his seat on the woolsack
at five o'clock.
The Earl of EGLINTON presented a petition from
Ayrshire praying for the imposition of restriction upon
dram shops.
DIVORCE AND MATRIMONIAL CAUSES BILL,

Lord LYNDIIURST said this bill was fixed for the
second reading on Thursday next. Ile, however, hoped
that, as it would be inconvenient for him to attend on
that day, another night would be fixed when he could be
in his place. Aright rev, prelate who took a great inte-
rest in the bill would also be unable to attend on
Thursday.
Lord CAMPBELL said he was desirous of taking
part in the discussion on this bill. Although
be was unwilling to oppose the second realing of the
bill, yet it contained a certain clause to which be had
a great objection, and if passed wortl furnish danger,us
facilities for obtaining a divorce between man and wife
merely from the circutnstanc3 of their living apart for a
certain limited period.
The LORD CHANCELLOR said he should have no
objection to alter the day for the second reading of the
bill. He wood name Friday next.
Lord LYNDHURST said it would be ,lesirable to
postpone h till next week.

The LORD CHANCELLOR the❑ fixed Tuestl;‘y
week as the day on which he would move tha
reading.

DISCOVERY OF GUANO.

Lord POLWARTH moved foray papers or
correspondence relative to the cession of the islands of
Haski Jibleea and Ghurzoad by the Imaum of Muscat
to her Majesty, and their erection into a colony ; and
also called the attention of the house to a licence granted
on the 20th of February, 1856, by the Comthissioners of
Emigration to John Ord and others, g;ving them the
sole and exclusive right to raise and take away guano
from these islands during five years.

The Earl of CLARENDON said there would be no
objection to the production of the papers moved for.
Her Majesty's Government were anxious to lay the
fullest information they possessed on the subject on the
table, as they were of the same opinion as the agricul-

tural interest as to the importance of the subject. He
bad had various communications with agricnl.
tural soeieties respecting an inquiry as to
the different islands on which guano was deposited.
He (Lord Clarendon) bad communicated ou this
subject with the Lords of the Admiralty, and it was de-
termined that an inquiry should be instituted to discover
to whom the islands referred to really belonged,
with a view to obtain a cession of thorn, if the report of
Mr. Ord was justified by facts. Capt. Fremantle went
out on this mission by direction of the Government.
Ho first sought the Imaum of Muscat, who, however,
was absent from the place when Captain Fremantle
landed, but he could not find guano there. Tire inbabitau ts
of the place told him they were subjects of the Imaum
of Muscat, and produced a document, signed by that
potentate, ordering them to treat with kindness all
persons who might land there. As Capt. Fremantle
was about to return he met the Imaum, who never ex-
pressed the slightest doubt as to his rights over the
island. Capt. Fremantle baying discovered guano in a
different part of the place, returned home and reported
it was inferior in quality, and that this island was not
so much of importance in respect to guano as a coaling
station. Some months after 2.1 r. Ord stated that he had
discovered fresh deposits of guano, which, al-lough not
as good as that of Peru, still it was of considerable value,
and he intended to send ships there himself if a lease
were granted him for four or five years, the Imaum of
Mascat having ceded the place to the British Govern-
ment. As Mr. Ord was the discovtrer, Government
granted him a lease—but they did not by grant-
ing bin that lease intend to create a monopoly,
Mr. Ord being perfectly ready to give a guarantee that
immediately on the arrival of each cargo they should be
submitted to public auction in quantities to suit the con-
venience of every person.
After a short conversation the returns were ordered.

PROBATES AND LETTERS OF ADMINISTRA-
TION BILL.
The LORD CHANCELLOR moved the second read-
ing of this bill, which he said was intended to remedy
an evil which bad been cried out against for many years
as arising from the numerous petty jurisdictions (for the
most part ecclesiastical) existing throughout the country
in regard to the granting of probates of wills and letters
of administration. As he stated on a former evening,
there were no fewer than a hundred different courts
which exercised this jurisdiction, besides which thete
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 exercised in itsown 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 p irtiee, whether the
probate should be taken out at Lancashire or at the Pfe-
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 nuoiher of other
small matters requiring remedy, but with two points
would he centent himself, the inconvenient multiplica-
tion of small courts throughout the country, and the in-
convenient mode of procedure in the larger cam., in Lon-
don. In the first place, be proposed to abolish all the
existing courts ' • because, supposing the present Pr.:ro-
gative Court to be as perfect as its greatest admirers
could wish, still 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 local 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, or an 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 he 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
of the plan would, no doubt, create great difference of
opinion, mainly 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 wills. The number of districts would
be thirty-six, instead of twenty-seven, as at pre-
sent. Uncontested wills he proposed to be filed in
the district, and a list sent up every fortnight to London,
and in case of small wills contested, 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 should 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 deposited during the life
of the testator. There were besides the points to which
he had alluded a nufnber of other details into which he
would not then go. There only remained fur him to jus-
tify the appointment of the judge of the new court. lie
proposed that the judge should be one of the Vice-Chan-
cellors. He was quite aware that in stating this he
should perhaps raise a storm of opposition in many quar-
ters. The Court of Chancery was undoubtedly very
unpopular in many quarters ; even, however, giving the
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-
pointment 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 I
task, so far as outcry from an opposition went, had he
preferred the establishment of a new court, with a new
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 lie could not
ask their lordships to pass such a bill. The judge of the
Prerogative Court sat for the disposal of non-contentious
business 25 times—or at the outside 30 times—during the
year, and the average length of these sittings was two
i'leurs each. At other times the judge was occupied in
deciding contentious 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 contentions business mid the duty of deciding,
where a verdict was unsatisfactory, upon the granting of
a new trial. There being then a necessity for a ne
stio on
judge, whose duties would be thus light, e que
was, to whomshould those judicial duties be given ? There
was only achoice between one of the Vice-Chancellors and
a common law 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. Chancellor 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
Their lordships were aware that Lord Truro,
held the great seal, issued a commission to
state of Chancery practice. Upon the
- -ion, his noble and learned friend
educed two measures which
'sings in the Court of

dub,,_
when he
inquire into the
report of that commit...
(Lord St. Leonardo) bad intru_
completely altered tho ttato of

Chancery. 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 bad 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 dispeeed of by the Master of the Rolls 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,
185 G, there were but 519 causes in arrear, and in Hilary,
1857, there remained only 245. (Hear.) Occaeieeally
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 trial, he would say a few
words. This power he proposed, as be bad already in-
timated, to vest in the Vice-Chancellor. In cases of
misdirection, no doubt a court of common law woul l be
better enabled to judge of the recesdty of grentieg a new
trial, but these were not the kind of cases wine + would
he likely to arise. In coy other ease the care and atten-
tion which the judges of the Court of Chancery habtuit'ly
gave to the question of the warning of new trials would
render the Vice-Chancellor tk• competent and proper per-
son to exereile the discretion of granting er within Fling
tl.e right of further proceedings. (Hear) Such were
the chief provisions of the bill, which, however might be
its demerits, was, be 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 of a
new court, with the expense of an entirely fresh judicial
machinery. In the year 1854, he (+lle Lord Chancel-
lor) introduced a bill on the subject, which passed that
house. In that he proposed to transfer 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 last 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 trans-
acted by the Court of Chancery. This big 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 re ding of the bill.
Lord ST. LEONARD'S complained of the perpetual
changes of intention which were manifested in these mea-
sures. First, the jurisdiction was to be given to equity ;
then there was to be a separate court; and now they came
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 jurisdic-
tion to courts of equity he had opposed it, but at the
same tinee urged that, if given, it should be given
to one ju tge only. That clause was then opposed by his
noble friend on the woolsack, who now, however, had
fully adopted it. But as ho Lad done formerly so be did
now oppose this transfer of jurisdiction to an equity
judge. The present equity system, notwithstanding
what was said to the contrary by those who were
ignorant of what the duty of this court consisted, was
working admirably. He feared that the introduction of
new duties might derange its working, and hence his
opposition. Besides, there now existed a competent
judge of a testamentary court. What was to be done
with respect to him? If his office were destroyed, be must
be compensated. He could not understand why the judge
of the Prerogative Court was allowed to spend his days
in retirement, his pay being continued, and a Vice-
Cba.ncellor appointed to do his work in addition to bis
own. It was one of the most wanton and unnecessary
changes that had ever been proposed. It would be a
change for no purpose, and by which the country would
gain nothing whatever. His noble and learned friend
proposed to take from heirs-at-law of real estate in
this country a right' which they bad hitherto always
possessed—the right to have the validity of a will tried
by issue. This was a vested right, which belonged to
them by the law of England, and he trusted that such
persons would always be in a position to say that they
would not yield up real estate till a jury of their coun-
trymen had decided against them.
The LORD CHANCELLOR intimated that the bill
would not have the effect which the noble and learned
lord supposed.
Lord Si'. LEON ARDS 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. Ho would never agree
that where there was no contention the heir-at-Jaw
should be called in as a party to a snit with regard to
' the testator's real estate. It must be remembered tliat
those who were interested in the personal estate were
sel torn entitled to the reality. With regard to the 36
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 these were neither
proctors nor judge, the registrars would, as it appeared to
him, be called upon to perform in many respects the duties
of both ; and the mere 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 LYNDUURST said he had intended to make
some observations upon tie 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 bi 3 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 bands 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 sanction of theLegiaattire, believing,
as he did, that it would have produced disappointment.
At the same time he was not at all satisfied with the
measure before the house, the sum and substance of
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, he would first have to see whether
there was ground for an issue or not, which he 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
might be an appeal to the Lord Chancellor or the Lords
Justices, which would be argued like any other appeal
in the Court of Chancery ; and lastly, an appeal to that
house. He 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 jadge 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 to be absorbed in it, and he 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 woull do well to noel-
lect 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.) If he wished—
as he was sure he 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
e f
Chancery.establish a
H
new Qeu
trustedeen's Courttat independentthe bfif
w o u
would
be hf teg r Courteatly
improved in committee, and that the present session
would not pass away without witnessing the
FORDaccomplish-
ment
was convinced that if the principle
meLntorodf
Ntvhe y object. e
of introducing Chancery jurisdiction were retained this
bill wewouldEshNarseLtth
respect AefDate
of
L
appointment
principle
gitrosftahres
prow isio
toE at
the
ea of
last session.
todeallns with
the prel
work he entirely concurred,
and he thought all the details of the measure might be
fitly reserved for
RD consideration
wished to say a few
in committee.
wordsT Eie
inL explanation O
CHANCELLOR
on one or two points. He had
deprive an heir-at-law of his right to
never intended 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 rnako it to their
lordships' house instead of to the Privy Council, was
that there might be cases in which real estate Was in.