The Sun.
London, England, 1857-07-07 00:00:00

SCOTCH BILLS.

On the motion of Lord DITNCAN, .consequence of
the absence of the Lord Advocate--.the Court of Ses,ion;
Crown, Suits ; Bill Chamber and Asse4sments
(Scotland) Bills, were postponed till WedneHday.

PROBATE AND LETTERS OF ADMINISTRA.-

TION BILL

On the motion for going into committee on this bill,
Mr. MALINS said that he and those who acted with
him intended to offer every opposition to the bill unless
the Government recognised the principle of compensa-
tion in reference to the proctors.
Mr. HADFIELD protested against such understand-
ing being entered into by the Government.
After some further discusiion reative to the question
of compensation,
Str H. WILLOUGUBy said that the house appeared
to bo going into committee on an important subjee,
without information relative to the compensation clauses.
He asked how many officers were to receive eoripenead
tion, and.the amount, if this bill passed into a
he called attention to the number of personas olaw, an
with the law now receiving compensation. anected
Col. 'SMYTH urged that Mi., house ouht to be in
possession of the information asked before going
committee on this bill, into
The AIrfORNEY-GENERAL said that every de-
scription of compensation should be raised on the dis.
cus.lion of the clause., when he would be ready to give
every information. He thought it would be better to
abstain from making any statement then relative to
coitipensation, but wait tiil the question came regularly
before the house.
The how(' then went into committee on the bill.
Clause 1 was agroad to.
On clause 2

Mr. COLIrIER moved to substitute the term "Office"
tf Probate for the term "Court" of Probate, in line 11,
page 2. The present bill proposed a new court, which
he had the authority of the Lord Chancellor for saying,
would have very- little to do. The bu-iness of the court
Was divided into two kinds, the common form business
and the contentious business, There would be littll
necessity for the presence of a superior judge to de-
termine this comn," fo
Of the conten-
tious business nine-tenthsnn business.
to the judge of
would be sent
..
common law, and, therefwe
said, the new judge would hrae, as the Lord Chancellor
The bill proposed to send a case before
to nothing to do
was to send it to Court B, which
hefocre Court A, which
it back to Cenrt A. That was a b ourt B was to send
what ha proposed was, that the court of
ri
ad pnciple. Now,
should have the -determination of all the contentious
law
business. all the questions of form being left etoonentious
acted by the registrar. There could be only two e trans-
lions to the course he proposed. The first was that jtehee
judges of the courts of common law had not time to dis-
cliarge the biltiuess ; the second, that they were not.

competent. With regard to the first objection, the insti-
tution of the county courts, and the simplification of pro-
cedure, hod so diminished the business of the superior
courts that there could be noVoubt that they would have
time to discharge the new business. In addition to thip,
he might mention that there was a commission now sit-
ting to inquire whether the number of the judges of the
higher courts might net be reduced. As to the compe-
tency of the judges of the superior courts there could be
no doubt. It appeared to him that there should be either
no court at all or a court that would discharge the whole
business.
Mr. ATHERTON hoped his hon. and learned friend
would not persist in his amendments. If he meant to
press the views he now put forward he should have op-
po :ed the bill on the second reading, because his amend-
ments were destructive of the very principle of the bill.
His hon. friend said there was no neceesity for a new
court and a new judge. He thought his hon. and learned
friend underrated the business which the new court would
have to transact.b But the
otthedremedy fothretrhere hopedafotwastogtihvee
the court more business
Attorney-General
the
h ewonld, introductionwhe no
theyof wards
cameords
whichto the
w 03u21
dd
clause, agree to
enable the new judge to try cases by jury himself, with-
out compelling him to send the issue to a court of com-
mon law. He also thought that the judge should be al-
lowed to hear motions for a new trial in these matters.
Sir F. KELLY said that, having been unfortunately
absent when the second reading of the bill was before the
house, he begged leave now to offer one or two sugges
tions with regard to it. He entirely concurred in the
general principle of the bill. They were all, be believed,
agreed as to the necessity of doing away with the eccle-
siastical courts. He approved of the clauses which threw
the common form business into the hands of persons
who were distributed throughout the different districts.
The new court having power to deal with real property
to some extent would increase the business of the new
court, and remove a great deal of the objection, on the
ground that the new court would have little business to
transact. The hon. and learned member for Plymouth
proposed that the entire contentious business should be
transferred to the common law judges. He concurred
with his hon. and learned friend in thinking that those
iearned persons would be the best judges in those cases ;
and if the Government were prepared to state that the
judges were willing, as well as able, to transact the new
business, he would adopt the amendment of his hon.
friend. He must, however, express his doubts on that
subject. As far as he could collect the opinion of the
judges it was this, that it would be impossible, consist-
ently with the other important duties they had to dis-
charge, and the interests of justice, to throw. upon them
this additional mass of business. (Hear.) The judges
bad to open new nisi prius courts in order to be able to
meet business they were now called on to tran-act. It
was a matter of great importance to consider what the
jurisdiction of the new court should be. In this respect
what bad been suggested by the hon. and learned mem-
ber opposite was as nearly as possible in conformity
with the bill which he (S,r F. Kelly) laid on the table
last session, and he hoped those suggestions would be
adopted by the committee. The Lord Chancellor had
stated that a main principle of the bill was that the
business of the court, and the mode of adruinics
tration, should he based on common law principles,
but he (Sir F. Kelly) submitted that would not be
the case, unless the measure was materially altered.
The sth section proposed to enact that the judge
of the Prerogative Court should be the first judge
of the new court. He would at the proper time
propose to omit that provision, and leave the choice of
he crown entirely unfettered. It was further proposed
that until the jurisdiction of the Admiralty was trans-
fared to the new court the salary of the judge should
only be 4,0001. He thought he ought to b© placed in all
respects on the same footing as the puisne judges and
the Vice-Ohancellir, and have the same salary. He also
thought it would be advisable to make a further change,
so as to enable the jode.e to transact the whole business
of his court. With a competent judge, and he was sure
none other would be appointed, there would be no cccis-
sion for sending issues to the courts of common law to
be disposed of. The judge should have authority to sum-
mon a jury, and so dispose of the entire business. The
result would be that the non-contentious business would
remain in the bands of those best qualified for it ; and
the whole of the contentious, except that small portion
allotted to the county courts, would be disposed of by
the court in London. It was said that the judge of the
new court would not have enough to occupy his time.
To meet this difficulty, he (Sir F. Kelly) suggested that,
if her Majesty should be pleased to name him a member
of her Privy Council, there should be a provision in the
bill to make him one of the Judicial Committee.
Mr. MALINS thought that the amendment of the
hon. member (slr. Collier) would transfer all the business
to the courts of common law. It raised a very important
point, and he was surprised the hon. member had sat
down without giving them some explanatirn of how the
business was to be done. This bill was founded on the
report of the Chancery commission, which, after full con-
sideration of the subject, reported that the jurisdiction
ought not to be transferred to any court where the testa-
tut:Lary administration was not the primary business of
the judge, and that it was inexpedient to transfer it
to the courts of common law. The hon. member
proposed to establish a registry instead of a court,
but the commission reported that it was of the
highest importance that the common form business
should he presided over by a qualified judge. It had
been said that the business of the court would be much
increased by tie fact of its obtaining jurisdiction over
cases of real estate, but the committee must be aware
that there were very few cases which related solely to
real estate. In his whele professional experience he Lad
riot met mote than five, and all wills which related to
both real and personal estate should be proved as at
present, s that the increase from this source would be
very small indeed.
Mr. BOWYER entirely approved of the amendment.
Its prirciple was to get rid of a most unscientific distinc-
tion of jurisdiction. There was no reason why they
should have a separate court for wills any more than fir
leases or for mortgages. He did not see what necessity
there was for probate of a will any more than of a deed,
although he admitted it would be very desirable to have
a registration of wills. If a will was not disputed, why
should it not be treated as a deed that was not disputed ?
At present, if a real estate of 10,000/. a year was left to
him, he took possetsion of it at once ; but if he got a le-
gacy of 101., he could not get it without obtaining pro.
bate from the Ecclesiastical Court. The amendment prc.
posed to give all the common form business to the regis-
trar, who would not be a court, while all the contentions
business would go to the common law courts.
Mr. ATHERTON ,aid some remarks had been made
as to the amount cf business in the common law courts.
A certain class of scandalous business had been 'got rid
of, but other business had very much increased, and it
was as much as the judges could do to get through their
work. He believed that very day there were six judges
sitting in Guildhall to dispose of jury causes.
Mr. WHITESIDE would wish to know from the At-
torney General why, if a man in the North of England
was to be allowed to prove a wilt of 1,590/. on the spot
in a cheap way, he should not do the saints if it was for
15,000/ ?
Mr. A.YRTON hoped the important question involved
in the amendment wouid not be decided on the narrow
issue of whether the judges of the courts of common law
-fere fully occupied er not. He believed the bill was
founded on the soundest principle of law reform, that the
entire of this business of wills and letters of administra-
tion should be entrusted to a single judge, who wou'd
discharge the whole duty. He believed that the only
way they could obtain perfection in the administration of
jo-tics was by that di?ision of lab3ur which had proved
so successful in every other department.
Mr. DUNLOP said a system similar to that recom-
mended by Mr. Collier had been in use for the last 30
years in Scotland, and it had been fount to work ad-
mirably. (Hear.)
The ATTORNEY-GENERAL reminded the hon.
gentleman that the Wills Act was not in force in Scot-
land. In that country any document, of the most in-
formal kind, would at once be admitted ; so that there
was not tnat amount of care required in dealing with
wil s there as was the case in England. When a man
died they could not have a scramble fi r his effects ; and
so they roust constitute some person as his representa-
tive. Who that representative should be was deter-
mined according to the tenor of the will itself, if the tee-
tutor left directions on that point; but if not, it must be
determined by certwn rules of practice. In a great
variety of cases no doubt there was no contest, but in-
struments were csnstantiy brought for the purpoie cf
pro if 6f a most irregular, unfinished, and imperfect cha-
racter ; documents c mtsining numerous erasures, inter-
lineations and alterations, whether those alterations were
intended to be final, or whether they were what were
t .conically called deliberative ones. In all these cases
he document had been submitted to the judge, and a
vast proportion of the 25,000 wills which were annually
proved needed thus his personal inspection, to satisfy
him that the requirements of the Statute of Wills had
been complied with. Now, that was a very onerous
duty ; ler if the wrong document was admitted to pro-
ba4,e, and the wrong executor converted to his own use
steak standing in the public funds, or in a public com•
pahy, in the name of the deceased, the executor ap-
pointed by the will, which ought to have been admitted
to probate in the first instance, might go to the bank, or
to the public company, and insist on the money being
paid a second time. It was clear, therefore, that the

duty of granting probates could not 1).3 confided, with
any chance of its tieing duly performed, except to a per-
s.ni of practiCal experience and skill. If they threw the
work upon the judges they could only take it at cham-
bers, and the result would be the most conflicting and dis-
tracting discrepancies in practice. Besides, he (Sir It.
litileli) had justreceived a communication from the Lard
Chieflkera tju'tic', stating that it was utterly impossible for
Inioessh.adlabeaenfev
e undertakeu. either the common form or the con-
tentions
b :I
appointedday s the reportto inquire of theint com-
missionersinto
theconstitution of the cona an law courts would be published,
and it would be found to contain
Bothell) found
aetatement to thesame
effect. He (Sir R. B3th
rand that in two days 14
documents had been reserved
the registry of the Pre-
rogative Court, for the
personal consideration consideration and exa-
inination of the judge, besides those which had been
brought before him in
court. The hone would therefore
see how much time woul t be required when h
not of the province of Canterbury only, buttofe business,
the country, came before one judge. He would re' Whole
I members that it was intended for the judge :If Ituhde }Poinnu
ro.
" bate Court to be likewise the judge ordinary of the court
which would have to deal with marriage and divorcret
fie regretted that the powers proposed to be conferred
on him were not larger, but it bad been thought desir-
able to adhere as much as possible to the report of the
commissioners whb had sat upon the Ecclesiastical Courts.
He was happy to say, however, that he entirely concur.
red in the opinion which had been expressed, that this

judge should have power to try issues himself when that
could be conveniently done. So far, then, from having
nothing to do, his apprehension was that the judge would
11" find his time adequate to the discharge of his duties,

and that he would not be able to try any considerable
number of issues. Still, whenever it could be conve.
niently done, it would be open for him to take cases in-
stead of sending them before the ordinary common law
tribunals. (Hear' hear.)
Mr. COLLIER, after the statement of the hon. and
learned gentleman, and especially after the communica-
tion from the Lord Chief Justice to which be had refer-
red, would not press his amendments; but as it was now
determined that there must be a Court of Probate, he
would devote his attention to making that court as per-
fect as possible. (Hear.)
The amendment was then withdrawn, and the clause
was agreed to.
On clause 5,
The ATTORNEY-GENERAL proposed to strike out
the proviso contained in the last three lines, because that
' would seem to make it imperative on the distinguished
and eminent judge of the Prerogative Court to be the
fiat judge of the Court of Probate.
Sir F. KELLY concurred in this amendment.
Mr. MA LINS thought that instead of omitting the
proviso it would be better to insert the words, "if be
shall be willing to accept such office."
Mr. AYRTON regarded the two offices as virtually
the same, and thought they ought to make the accept-
ance of the new judgeship imperative on Sir J. Dodson.
The proviso was, however, struck out without any
further observation.
On clause 6,
Mr. HODGSON asked the Attorney-General to fur-
nish the house, on some future occasion, with an esti-
mate of the probable yearly expense of the new court.
Mr. ADAMS repeated' his suggestion that the Admi-
ralty Court should not be united with the Court of Pro-
bate. He thought it would be far better to send Admi-
ralty eases before the common law courts, with juries of
nautical men, than that the judge of the Probate Court
should not hays time to try the issues that might arise.
He objected to the limitation of the provincial probates
to cases where the property did not exceed 1,5001. There
were cases in which a man's debts might swallow up the
greater part of his estate, and there was no reason why
the unnecessary additional expense of bringing the matter
up to London shoul i be imposed upon the executors.
Mr. W. WILLIAMS said that no alarm need be ap-
prehended with regard to the amount of work that
would be thrown upon the judges by having to transact
the business of the Admiralty Court.
The ATTORNEY-GENERAL bad satisfied himself
that there were reasons why it would be better that
Admiralty cases should be confined to a single judge.
The clause before the committee simply provided for a
future eontingeney, upon which a bill would have, at
some future period, to be brought in ; in the meanwhile
that contingency ought to be provided for, and he trusted
that the cenirnittee would accept the clause.
Mr. ATHERTON thought that the common law
courts were already sufficiently burdened, and that to
add any more business would be to place the last straw
on the camel's back.
Sir F. KELLY approved of the cause. No doubt
many questions came before the common law courts
which came before the Court of Admiralty also ; but the
latter court had a jurisdiction in rem which the former
did nut possess. Tess jurisdiction was of the utmost uti-
lity where one of the parties, as frequently happened in
collision cases, was a foreigner, residing out of the juris-
diction of the ordinary courts. He trusted, therefore,
that this jurisdiction in Admiralty cases would be care-
fully preserved.
The clause was then agreed to.
Upon douse 10,
Sir E. PERRY moved to leave out after " esta-
blished," and insert " District courts to be presided over
by the county court judge in all county court distric's
except those of the metropolis (Nos. 40, 44, 42, 43, 44,
45, 47, and 48), and a public registry shall be attached
to each court, the registrar whereof shall be under the
control of the Court of Probate." His object was to as-
sociate the registrar with the judge of the county court.
Taking Devonshire, the county with w'aieh he was con-
nected, as an instance how the matter would be affected
if the bill passed as it stood, he might mention to the
committee that whereas at the present time probate
could be obtained at the different places in that county,
under the bill there would be but two such places where
that facility would be afforded. Now the effect of his
amendment would be to attach au ecclesiastical registrar
to each county court. This proposal' would Lad to
the appointment of 51 registrars instead of 41. There
would accrue from such a proposition a benefit to the
public, inasmuch as at a future time the registrarships
could be held by the county court registrars.
Mr. ATHERTON supported to„ amendment, consi-
dering it to be most desirable that in small properties the
greatest possible facilities should be placed in the way of
those having to administer the estates of deceased par- I
ties.

Mr. COLLIER thought it was contrary to principle
that the contentious jurisdiction should be marshalled
according to the county court districts, while the non-
contentieus jurisdiction was settled by the diocesan dis.
tricts. One system ought to be adopted, and that system
was the county court districts. The diocesan divisions
were antiquated and inconvenient, while those of the
county courts had recently been settled by a commission
which had carefully inquired into the whole matter, and
were therefore moat likely to meet the requirements and
the state of population at the presenr day.
Mr. B. DENISON supported the clause as it stood.
He could safely say that those, parties who lived in the
Yorkshire districts were extremely anxious that the ex-
isting divisions should be preserved, and that York
should continue to be the centre of them.
The ATTORNEY-GENERAL was sorry that he
could net for a moment listen to the amendment of the
hon. member for Devonport. The hon. member talked of
convenience; con venienee, when the committee was
dealing with rural districts, consisted in preserving, as
far as possible, the existing habits of the people. They
would find it most to their convenience to go to those
places to which they bad been in the habit of going in
order to prove wills. The hon. member proposed to undo
all existing arrangements, and then to impose upon peo-
ple the necessity of travelling about after the county
court judge—for that functionary visited different towns
is succession—in order to transact the common form
business of proving a will. And the person to transact
that common-form business was to be a registrar of that
county court. But he reminded the committee that these
registrars had important duties to perform, and it was
highly expedient that their offices should be held by men
who were possessed of ampleexperience. The:billßroposed
to place experienced gentlemen in the position of regis-
trars, and to give them the means of communication with
the judge of the Court of Probate in London. Thus it
was hoped that due security was made for the proper
fulfilment of the important duties entrusted to them.
The county court judge would be competent to decide
matters of fact, but it would be quite at variance with
their intention to mix them up with more important
questions.
Mr. COLLIER said that all he contended for was that
the registrar should be attached to the county court.
Nothing that bad fallen from the Attorney-General had
altered his opinion.
Sir E. PERRY said that the Attorney-General had
misunderstood him. His only object was that the regis-
trar ghoul f be attached to the county court, instead of
the diocesan court. His hon. and learned friend proposed
41 registrars ; he suggested 52, to be located in some
central spot in each district.
The amendment was withdrawn, and the clause then
agreed to.
Clause 11 was then agreed to, without discussion.
Clause 12, with some verbal amendments proposed by
the ATTORNEY-GENERAL, was also agreed to.
Clause 13,
Mr. DIVE rr moved to insert, in line 2, after the
word "court," the words "and all managing
clerks who
have been continuously employed in any diocesan court
for 15 years and upwards immediately before the passing
of this act."
The ATTORNEY-GENERAL objected to inserting
any words having reference to the managing clerks in
that clause. Their case might be considered lower down
in the bi.l.
After a short conversation the amendment was nega.
tived without a division, and the clause agreed to.
Clause 14,
An amendment, proposed by Mr. SALISBURY, was
assented to by the ATTORNEY-GENERAL, and the clause
agreed to.
Clause 15, fees of diocesan and district officers.
Mr. MALINS proposed that these officers should be
paid by fix id salaries.
Mr. ROEBUCK supported the amendment.
The ATTORNEY-GENERAL objected. It would be
impossible at present properly to apportion the salaries.
Tne amount varied much in different districts, and if
the officers were paid by salaries some would }Ave too
mach and some too little.
After an observation from Sir E. PERRY,
Mr. HENLEY thought that Government had taken
the wisest course in adhering to the fees. When this
act had worked for a few years they might be able to
fix on a proper scale of salaries.
Mr. ROEBUCK said the work might be as hard in
a small district as in a large one, while the fees would be
very different. He wished to know on what scale the
fees were to be regulated.
The ATTORNEY-GENERAL said that the mode of
regulating the fees would be two-fold. lathe &et place
they would be regulated by the amount of the stamp,
which was sometimes so mai as sevenpence, and not
according to the length of the document. In some
csses the probate might contain only a few words, and
in others it might extend to several sheets. The fee
would be in proportion.

Mr. BRISCOE opposed the amendment, which was
put and negatived, and the clause was agreed to.
Clau-es up to 23 inclusive were ordered to stand part
of the bill.

Mr. WESTLIEAD inquired whether the clerical sur-
rogates would under the bill continue to perform the
duties which now dev)lved upon them of swearing affi-
davits, &c.

The ATTORNEY-GENERAL could not say that it
might not be necessary, in framing the rules and orders,
to alter in some way the duties which were now per-
formed by the surrogates. But this he said, viz., th-t
with regard to the surrogates, and the clerical surrogates
more especially, it was intended to secure them the full
measure of remunerative employment they now enjoyed.
Mr. STEEL moved to insert in line 31, after " pro-
bate," the words "Provided that in every city, borough,
and town throughout England containing not less than
5,000 inhabitants, the judge shall appoint the registrar
(4 the county court of the district in which such city,
borough, or town is situate, or some other fit and proper
person within such city, borough, or town, to be such
commissioner or commissioners."
Lord HOTHA.2I believed there was considerable diffe-
rence in the duties performed by the surrogates in York
and Canterbury, the duties of the surrogates of York
being nearly allied to those of the proctors in the pro-
vince of Canterbury, consequently their emoluments
wer:-0 y (Ater. Was it intended to mete provision Accord.
_ _