The Sun.
London, England, 1828-07-18 00:00:00

PREROGATIVE COURT:

Mr. HUME rose to present the petition of which
he had given notice on a' former ap-
peared from the petition that in 1821 a person
leaving property. to the
'mined Evans had died,
amount of 1,7001. to 1,8001. It happened, unfor-
tunately, that he left two wills, one in favour of his
niece, and the other in favour of an adopted daugh-
ter. Yee could not say whether the second will had
been made under.' the impression that the first bad
been destroyed ; but so it was, that in. December;
1821, a person named Evans proved under one will,
and received probate. The present petitioner, how-
ever, conceiving that he, in right of his wife, was
the' legal heir, instituted proceedings in Doctors'
Commons to obtain probate of. the will. One of
the grounds of complaint set forth by the petitioner
was, that he had been four years and a half a suitor
in that Court at an expence almost incredible, with-
Out obtaining redress. And here he begged leave to

point out the vicious practice of that Court; he
used the term vicious, because he felt that the prac-
tice of any Cci'rt sjught.t'd be '3o Wheie;
suingiii to recover a sum of 1,800/., a sum of 2,500/.
was expended. Such a Court he held to be a nui-
sance, which ought to be done away with. Mr.
Peddle stated in his petition, that he commenced
proceedings in 1821, and that in 1824 judgment
was given against him, and in favour of his oppo-
nent, but without costs, Which sheaved that there
existed some doubt as to the. legality of that oppo7
nent's claim' So urongly Itrfo this feeling impressed
upon " hi?; PrOtorg, toller and son, that the
elder Mr-Toller told petitioner that he was dissatis-
fied with the judgment pronthinced, which he con-
sidered corropt, and recommended the petitioner to
appeal to the High Court of Delegates, who would
be had no doubt, set it aside. This course the peti-
tioner adopted, under the impression that it would
t-quire but a short time to decide the appeal. The
proceeding commenced in July, 1824, and in 1826
the Court of Delegates confirmed the, judgment of
the Prerogative Court, but without costs., which again
created an impression that the decision wag bad.
the following September, a Bill. was sent in by a
gentleman, described by .his Hon. and Learned
Friend below him as a petty-fogging attorney.—Now
he would state, that lie had from two or three most
respectable quarters, received information respecting
that gentleman's character, and he found it-un-
blemished. Mr. Toiler sent to plaintiff a bill
amounting to 687/. 195.; for the first expences, and
384/. as the expence of the appeal—making a total of
10721. The other parties paid upwards of 1600/.
expellees ; so that, if the decision remained un-
changed, they would have only 150/. or 2001. re-
maining. It appeared by the proceedings that his
-Hon. and Learned Friend (Dr. Lushington) had, in
the firsf instance, been retained by Mr. Peddle, the
petitioner; but it was found that lie was subse-
quently retained by the opposite party; and he found
amongst the charges of expence a most extraordi-
nary item—the adverse attorney having refused to
give up the papers, the matter was referred to Dr.
Arnold, and the expences of that reference were
charged by Mr. Toiler. This, he conceived, was
sufficient to show that:his Hon. and Learned Friend
(Dr. Lushington) was not free from the abuses of
that Court, any more than the Hon. and Learned
Gentleman who presided in it. The proceedings in
the Court of Delegates having gone by, next came
the settlement of accounts. Mr. Peddle applied to
Mr. Toiler for an explanation of some of the items,
which application was refused. The petitioner then
prayed, by affidavit, that his soli ci tor, might be allowed
to attend, but the application was refused. Another
application was made to the Court, in which were
the statements of Mr. Toiler, as to the 'decision of
the Court, but the Court refused to receive the af-
fidavits, and only asked Mr. Toiler if the allegations
were true. Mr. Toiler replied in the negative, and
the Court rested satisfied with his simple assertion,
in opposition to the oaths of three individuals. The
petitioner consequently came up to town, attended
the Court, and asked for the table of fees Proctors
were allowed to charge. He found none, and with
his solicitor, Mr. Walker, made affidavit referring to
the 135th and 136th Articles of the Canons, which
it was contended, required that a table of fees should
be hung up conspicuously in the Coort. It seemed
to him (Mr. Hume) that on the 'l34th Article of
the Canons depended many of the abuses of the
' Court. The 134th and 135th Articles related to
the fees to be taken, which it was declared should
not be greater than had been approved and establish-
ed in 1597. The 136th Article provided, that a
table of fees should be hung up openly in Court ;
and it was declared that any Registrar who should
fail to hang up this table of fees should be suspend-
ed until he executed his duty in this respect; and
if a Registrar allowed it. to be removed, for such
offence he should be suspended froth his office for
six months. Mr. Peddle attended with his solici-
tor, and could find no table of fees as required:
he made affidavit of the fact, in order that the
Registrars might be suspended, according to
the terms of the 136th Article of the Canons.
Notice was then given in the Assignation Book in
the regular manner, of an intended motion on the
subject for the Bth of Joly, When it was stated that
the Counsel for the petitioner would pray the Court
to suspend the Registrar until the table of fees was
exposed as was required. The day arrived when
the petitioner was prepared by his Counsel to open
his case, but the Judge stopped-him at the moment
he was about to begin. The Hon. Member, from
the notes of the short-hand writer, proceeded to
state what occurred on that occasion, when Sir
John Nichol refused to allow Dr. Lee to proceed, on
the ground that the papers were entitled in a cause
not before the Court. When Dr. Lee rose to ad-
dress the Judge on the subject, Sir John Nichol re•
fused to hear him, and filially desired the officer of
the Court to remove him if he did not resume his
seat. After reading several passages from the peti-
tion relative to this part of the case, the lion. Mem-
ber adverted to the general complaint contained in
it relative to the monopoly attempted to be esta-
blished and preserved in the Prerogative Court.
The Canons required that no Registrar should be
Counsel directly or indirectly in any proceeding
connected with the Court ; yet it would scarcely be
believed that three of the Registrars were Proctors,
carried on business to a great extent, and were ac-
tually called upon to tax the costs of each other.
The ties of blood and connection must operate in
some way or other, and when a man had a cause
decided against him, he might have reason to la-
ment that he did not employ a Counsel for whom
the Court might feel a partiality. Mr. George Jen-
ner, according to the assertion of the petitioner, was
nephew of Sir John Nichol, Registrar of the Arches,
and. Deputy Registrar of the Prerogative Court, be-
sides holding two or three other offices; and in op-
position to the express Canon carried on the busi-
ness of Proctor, under the firm of Jenner, Cooke,
and Jenner. Mr. Cooke was dead, and Mr. George
Jenner was, in fact, now the only surviving member
of the house. Mr. Dynely was also a nephew of
the Judge ; and if no actual connivance could be
established, suspicion must unavoidably attach to
parties so circumstanced and connected. After
stating among other things that a memorial had been
presented to Sir J. Nichol, praying that the table of
fees mentioned in the Canons should be placed in
open Court, which had been passed over without
notice,- the Hon. Member concluded by saying that
it was not pOssible, at this late period of the Session,
for .the HouseAo enter into' a minute inquiry upon
the subject, but it was a question whether Govern-
Ment ought'neit theMselves to order an investigation
by,Other means than
.a. Committee of the House of
Commons.

The question was then put that the petition be
brought up.

Dr. LUSHINGTON deeply laMented the
~nec-
essity be Was under of troubling House at any
length ; but he was. confident _ it would - extend its
indulgence to him, 'when it Was recollected that to
him was committed`-the jUstifiCation'of a Right lion.
and Learned Judge norpresent, who had long been
a Member of the lionse, had belongedto the pro-
fession' of which an ornament for*between
40 and 50 years, and after filling, the office of King's
Advocate; had for nearly 20 years been. Judge of
the Prerogative Court. Of Canterbury._ -Had the
conduct Of.theßight. Hon. Judge been liable to im,
putation, and had he even expected that the charge
.would be preferred in the way in which it had been
brought forward, still it was not the ordinary course
for.the Member who had undertaken the case to
come down on the day he had appointed, and then
avow that he was not'prepared to g.o into the subject.
Sere he was, that although the Right, Hon. Judge
owed much to the House, he was, not indebted to
the Hon. Member for Montrose for, the uncourteous
and unceremonious manner in. which-he bad entered
the notice on the proceedings of the House, and
afterwards postponed the statement of the case set
out in the petition. The Hon. and Learned Gen-
tleman proceeded to eulogize the zeal and industry
of the Right Hon. Judge of the Preiogative Court,
in whose Court, he could speak from experience,

there were no arrears ; all the cases were disposed
of at furthest within a month or six weeks of the
time 111th they were set down for bearing.—(Hear.)
—As to the expressidits which he had used on a
former occasion, in reference to an itiditidual who)*
he accused of misconduct, he would not hesitate w
repeat, respecting that individual, feeling that he
was justified in so doing from the course that had
been pursued by that individual (Mr. Walker), as
be had stated that on oath which was not true.—
After stating that the decision of Sir John Nichol
had been affirmed by the High Court of Delegates,
thus confirming the propriety of his judgment, the
Hon. and Learned Gentleman stated, that after this
case had slept for 17 months, the services of the
Proctor, Mr. Toiler, who had hitherto conducted
the case, and against whose conduct of it in any
respect there was no ground of complaint, were
waived, and Mr. W. Geary, jun. was employed.—
Respecting this individual, he would only remark,
that he had been suspended from his functions three
times—once by Lord Stowell, and twice by the
_present Judge of the Prerogative Court. He
repeated the name of this individual, as he was de-
sirous to distinguish him from other persons of the
same name. With respect to the advocate selected on
this occasion, who was Dr. Lee, he would only
remark, that looking to his extraordinary conduct for
the last six years in the Courts in which he appeared,
very considerable doubt existed among many who wit-
nessed that conduct whether he was of sound mind.
In the affidavit made by Dr. Lee it was stated that
he was refused the table of fees which he main-
tained ought to be exhibited. Now, in reference to
this table of fees, be would just remark, that in
1597 a table of fees which the Registrars and
officers of the Court should receive was drawn up
by the Archbishop of Canterbury. Subsequently,
however, in 1724, under an inquisition issuing
from the Crown, fees were regulated; and upon
the regulations that then took place, no. increase
except, he believed, of 6d. in a single instance, had
taken place. When Dr. Lee required the table of
fees to be exhibited, he was presented with the Re-
port of the Commissioners, in which the fees of the
officers were fixed ; but with this he was not satis-
fied. If what he required was a table of the Proc-
tors' fees, be required that which had never been in
existence. At no time had there been such a table,
so that it could not be justly made a ground of com-
plaint that the table had not been exhibited, when
information respecting the only table of fees which
had existence at all was forthcoming at his request.
An offending Registrar could not be suspended by
the Judge, but only by theßishop himself. The Judge
had no authority to suspend a Registrar. The affidavit
next charged the Registrars with taxing their own
bills. Now, the practice was, that the Registrars
never taxed their own bills, but always referred them
to the other Registrars, who had no interest in them.
—(Hear, hear.) The last complaint was, that Proc-
tors were appointed to the office of Registrar; but
this had been die practice beyond the memory of
man; and it was indispensably necessary that they
should be persons acquainted with the business of
the Court. He (Dr. Lushington) submitted that
the Right Hon. Judge, in hearing this case, had
only discharged his bounden duty, and preserved the
decorum of the Court. The Hon. and Learned
Gentleman then adverted to the statement that some
of the deputy Registrars were relatives of the Learned
Judge. The fact, he admitted, was perfectly true;
and he was happy that he had it in his power, by
some letters written many years ago, to exhibit the
character of the Right Hon. Judge in its true light.
The Hon. and Learned Gentleman then read several
letters which had passed between the Rev. Mr.
Moore, in whose gift .the office was in 1817, when
Mr. Dyneley was appointed, and Sir John Nichol.
The letters strongly expressed the anxiety of Mr.
Moore to appoint an efficient officer. It was singu-
lar but true, that though the Right Hon. Judge
was thus confidently consulted, Mr. Moore was in
utter ignorance of his relationship to Mr. Dyne-
ley, until the fact was avowed by Sir John Ni-
chol himself. There could be no doubt of the
fitness of Mr. Dyneley for the office, and it had
never before been imputed as matter of blame to any
person having patronage, that he had used it to pro-
mote the advantage of his relatives when duly quali-
fied. It had never been made a matter of censure
to Lord Ellenborough that he had appointed his own
nephew to be Master of the Crown Office. Lord
Kenyon and other Judges had never hesitated to
bestow the offices in their own gift on their relatives
when they were fit and proper persons to hold them.
When he heard the Hon. Mover talk of the extra-
vagant fees of this Court, and object to the remune-
ration of a Judge, whose whole emoluments were
but 3,000/. a year; and who, after discharging the
arduous, difficult, and complicated duties of that
office for twenty years, and being now nearly seventy
years of age, was yet not entitled to a single shil-
ling on his retirement, and received no greater re-
ward than the wisdom of this House fixed a century
ago, for the salary of the Judge of the Prerogative'
Court, when he had not a tenth part of the duties
to perform ; he (Dr. Lushington) must say, that it
did become those who made complaints of this na-
ture, to be provided with some evidence in support
of them. As to all that had been said regarding the
table of fees, be had heard it with ineffable contempt.
He lamented that the Hon. Gentleman should come
with charges against a person filling an infinitely
higher station than himself (Dr. Lushington),
sad whose feelings, as he had not been so much
tossed about among contending parties, were pro-
bably more easily wounded. He had always been
politically opposed to the Right Hon. Judge, but he
felt it his duty to bear his testimony to the unspot-
ted purity of his judicial conduct.
Mr. D. W. HARVEY considered the facts of this
case of sufficient importance to justify the presenta-
tion of the
_petition, and -to demand Parliamentary
interposition. He thought there was no ground for
the charges against Sir John Nichol, but there was
another branch to which the attention of the House
should be directed, and for the reasons stated by the
Learned Doctor himself—namely, that no redress
could be at present had for these abuses. This
party complained, that being a litigant in the Eccle-
siastical Court, for a sum not exceeding in amount
1,7004, he had bills'delivered by his Proctor, exceed-
ing the sum of eleven hundred pounds, in which there
was one item of 3031. The petitioner proposed to
tax these bills, and he was referred to the Registrar
of the Court, but, as the Learned Doctor had stated,
not to aid the petitioner, but to create a prejudice
against him—being an ignorant and unlettered man
—he requested that, the taxation of costs might be
superintended by a solicitor. • Now he (Mr. Harvey)
would like to know what honest reason there could
be for refusing this request.? The bills consisted of
many sheets, and the items were scarcely intelligible,
and some of them extortionate. The Learned
Doctor, in defence, statedlhat• the Registrars never
taxed their' own- bills: But surely there. never was
such a " lame and impotent" defence: It was true
they did not tax their own hills, but they did tax
each other s.—(Hear, bear.)—All this was glossed
over. by the mutual praise uf the parties. The
Learned Doctor indeed, did not praise himself ; but
when the Attorney General rose; the House would
have a full-length picture of the talents and virtues
of the Learned Doctor, 'as he had draWn Of the
Right Hon. judge The ptinCiple was Tickle
me, Toby, and: I'll tickle laugh).—So it
was with" these RegiStrars. " You tax my bill
liberally, and I'll tax yours so; but, for. God's sake,
dont let in an attorney to see the mode in which we
protect our interests, and maintain the farce of our
extravagant charges."—(Hear.)--rßut the Learned
Doctor stated that there was no table of fees.
That was, a good ground for the petition. The
Learned Doctor had exposed. himself to merited.
rebuke for 'his attack ors the' character of Mr. Wal-
ker. While he was reprobating any insinuation
ac.goauitritst:vtihtie character of a
a-year,
aJitidge
opm‘h
power to
presided in
toprovidefoar
his cousins and other relatives, how came he to for-
get that the character of Mr. Walker was impor-
tant to him.? A more unwarrantable attack had
never been made.
The ATTORNLY.GENERAL thought that

the answer of his Hon. and Learned Friend (Dr.
Lushington) to what had been stated by the Hon.
Alember for Montrose, was most complete and tri-
umphant. He: perceived that the Hon. Gentleman
(Mr. Hume) was busy with his pencil in taking a
note of what' was said, and he trusted that by so
doing he meant that he was about to retract what
he had said--

Mr. HUME—Never.
The ATTORNEY-GENERAL.---The Hon.
Gentleman said " Never ;" but he believe:l t hat in that
case he would have to divide by himself only, and be
the only man to condemn the Right Hon. Judge.—
(Hear, hear.)—But he trusted the Hon. Gentlema»
would not persist. in such a course, and after all, he
had too good an opinion of the Hon. Gentleman's
seusorium, and of the real strength of his head—(a
laugh)---to suppose that he would persist, especially
as he had, by the speech of his Hon. and Learned
Friend (Dr. Lushington), been made acquaihted
with the real - facts• of the case. He hoped the
warmth of the evening would relax the. feelings of
the Hon. Member,. and that he would melt on. the
subject.
After a few words from Dr. PIIILLIMORE, Mr: 11.
Davis, and Mr. HEM; in reply, the question, " that
the petition do
.lie on the table"..was put, and ne-
gatived without a iiivision. -
Mr. HUME said he would bring-oh the subject
to-morrow, and he -should then move for a Return
of the Fees received in that Court.