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

SCOTCH BELLS.

Oa the motion of Lord DUNCAN, in consequence of
the absence of thA Lord Advocate--the Court of Session;
Crown, Suits ; Bill Chamber and Asse,,,sments
(Scotland) Bills, were postponed till Wednesday.

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 discussion relative to the question
of compensation,
S,r H. WILLOUGHBY said that the house appeared
to be going int) committee on an important subject
without information relative to the compensation clauses.
He asked how many officers were to receive compensa
tion, and the amount, if this bill passed into a law, and
he called attention to the number of persons connected
with the her now receiving compensation.
Col. SAYrII urged that the house ought to be in
possession of the information asked before going into
committee on this bill.
The ATTORNEY-GENERAL said that every de-
scription-of compensation should be raised on the dis-
cussion of the clauses, when ha would be ready to give
every information. He thought it would be better to
abstain from making any statement then relative to
compensation, but wait tia the question came regularly
before the house.
The house then went into committee on the bill.
Clause 1 was agreed to.
On clause 2

Mr. COLLIER move,d, to substitute the term "Office"
r newob a t
page 2. The present bill Luourprted"seedf Pa
of Probate for the term
he had the authority of the
would have very little to do.ce,ouinrt,lin:hilcib,
TheChatmellor for saying,
was divided into two kinds, the bu'ine's
of the court
itiecommon form business
and the contentious business. re would be iit•li
necessity for the presence of a superior
de-
termine this common form business. Ofjutdhge to
tious business nine-tenths would be sent to thee'cZen.
common law, and, therefore, as the Lord CU:late-ell of
said, the new judge would have next to nothing toe Lir
The bill proposed to send a case before Court A, which.
was to send it to Court B, which Court B was to send
it back to C-,tort, A. That was a had principle. Now,
ghat, he pr posed wa., that the court of common law
should have the determination of all the contentious
business. all the questions of form being left to be trans-
acted by the registrar. There could be only two objets
tions to the course he proposed. The first was that the
judges of the courts 0 common law had rot time to dis-
charge the buioests ; the tecond, that they ware not

competent. With regard to the first objection, the insti-
tution of the county courts, and the simplification of pro-
cedure, hod so dimini-hed the business of the superior
courts that there could be no doubt 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 not 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-
posed 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. But the remedy for that was to give
the court more business to do. He therefore hoped the
Attorney-General would, when they came to the 32d
clause, agree to the introduction of words which would
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. Ho 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 befo're 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, he believed,
agreed as to the necessity of doieg away with the eccle-
siastical courts. He approved of the cl►ases which threw
the common form business into the bands 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
learned persona 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. (dear.) The judges
had to open new nisi prius courts in order to be able to
meet business they were now called on to transact. It
was a matter of great importance to consider what the
jurisdiction of the new court should be. In this respect
what had been suggested by the hon. and learned mem-
ber opposite was as nearly as possible in conformity
with the bill which he (Sir 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_ adminis-
tration, should be based on common law principles,
but he (Sir F. Kelly) submitted that would not be
the cave, 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
the crown entirely unfettered. It was further proposed
that until the jurisdiction of the Admiralty was trans-
fered 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-Chancell ►r, and have the same salary. He also
thought it would be advisable to make a further change,
so as to enable the judge 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 occa-
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 hands 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 lie a provision in the
bill to make him one of the Judicial Commitne.
Mr. MALINS thought that the amendment of the
hon. member (Mr. Collier) would transfer all the business
to the courts of common law. It raised a very important
poin►, and he was surprised the hon. member had sat
dow❑ without giving them some explanation 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-
mentary 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 teat it was of the
highest importance that the common form business
should be presided over by a qualified judge. It bad
been said that the business of the court world be much
incresved by the 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
reel estate. In his tehtl. pri fessioral experience he bad
not met mo►e than five, and all wills which related to
both real aed personal estate should be proved as at
present, s ► that the increase from this source would be
very small indeed. _ _ _

Ifr. EOWYER entirely approved of the amendment.
Its principle was to get rid of a most un€cientific distinc-
tion of jurisdiction. There was no reason why they
should have a separate cam t for wills any more than for
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 will 4. 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 10,0001. a year was loft to
him, he took possession 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 pro-
posed to give all the common form business to the regis-
trar, who would not be a cow t, while all the contentious
business would go to the cmumon law
_courta.
Mr. ATHERTON said some remarks had been made
as to the aniouit of business in the common law courts.
A certain class of scandalous business had been gold rid
of, but other business had very much increased, and it
was as much as the ju !gas could do to get through their
work. Ile 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-Gereral why, if a man in the North of England
was to be allowed to prove a wilt of 1,5001. on the spot
in a cheap way, he should not do the same if it was for
15,0001?

Mr. A VIITON hoped the important question involved
in the amendment would ❑ot be decided on the narrow
issue of whether the judges of the courts of common law
were fully occupied cr not. He believed the bill was
founded on the soundest principle of liw reform, that the
entire of this business of wills and letters of administra-
tion should be entrusted to a single judge, who would
discharge the whole duty. He believed that the only
way they could obtain perfecti.in in the administration of
justice was by that divisio❑ of lab )ur which had proved
so eucces•ful in every other department.

Mr. DUNLOP said a system similar to that recom-
mended by Mr. Collier had been in u 35 for the last 30
year.; in Scotland, and it had been found to work ad-
mirably. (Ifear.)

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
wills there as was the case in England. 'VY hen a man
died they could not have a scramble fir his effects ; and
so they must 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.
tator left directions on that point; but if not, it must be
determined by certa'n rules of practice. In a great
variety of cases no doubt there was no contest, but in-
struments were constantly brought for the purpose of
proof of a most irregular, unfinished, and imperfect cha-
racter ; documents centeining numerous erasures, inter-
lineations and alterations, whether those alterations were
intended to be final, or whether they were what were
technically called deliberative ones. In all these cases
the 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) for if the wrong document was admitted to pro-
bate, and the ,wrong executor converted to his own use
stock standing in the public funds, or in a public com-
pany, 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 be confided, with
any chance of its being duly performed, except to a per-
son 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 R.
Bethel)) bad just received a communication from the Lord
Chief Justice, stating that it was utterly impossible for
them to undertake either the common form or the con-
tentious business. In a few days the report of the com-
missioners who had been appointed to inquire into the
constitution of the common law courts would be published,
and it would be found to contain astatement to thesame
effect. He (Sir R. Bethel!) found that in two days 14
documents had been reserved in the registry of the Pre-
rogative Court, for the personal consideration and exa-
mination of the judge, besides those which had been
brought before him in court. The house would therefore
see how much time would be required when the business,
not of the province of Canterbury only, but of the. whole
country, came before one judge. He would remind lion,
members that it was intended for the judge of the Pro-
bate Court to be likewise the judge ordinary of the court
which would have to deal with marriage and divorce.
He 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 who had sat upon the Ecclesiastical Courts.
He was happy to say, however, that ho entirely concur-
red in the opinion which had been txereseed, that this
judge should have power to try issues himself when that
could be conveniently done. So far, then, from having
nothing to do, Lis apprehension was that the judge would
not find his time adequate to the discharge of hie duties,