§ Order for Committee read.
§ MR. SELWYN
said, that on the second reading of the Bill no opportunity had been given for discussing its provisions, and he had taken advantage of the time which had since elapsed to consult the opinions of several eminent lawyers both on the Bench and at the Bar. Finding that they entertained the same objections to the measure that he himself had, he thought it right to state those objections. When he informed the House that his objections were shared by the senior Vice Chancellor, Sir R. T. Kindersley, and by Sir John Romilly, the worthy son of an eminent law reformer, he was sure that they would have some weight with the House. The object of the Bill might be stated in a few words. It proposed to enact that in all cases in which any relief or remedy within the jurisdiction of the Courts of Chancery should be sought in any cause or matter in those courts, and whether the title to such relief were or were not incident to or dependent on a legal right, every question of law or fact, on the determination of which the title to such relief or remedy depended, should be determined by or before the same court. The Bill therefore took away from the judges of the Courts of Chancery the discretion hitherto exercised by them in reference to the mode in which justice should be dispensed in their own courts. It had been stated by his hon. and learned Friend as one reason for the introduction of the Bill, that the judgment of the judges was fettered by a certain train of precedents and authorities. If the operation of the Bill were confined to the removal of that fetter which was supposed to exist, he should not oppose it; but he dissented 115 from the Bill entirely when he found that it really imposed a more complete fetter. A suitor had only to exercise some ingenuity in discovering the smallest ground for equitable relief—in fact, an equitable relief simply ancillary to the main question to be determined—and therefore it was made incumbent upon equity judges to hear and determine matters which ought properly to be determined in Courts of Common Law. In the first place, the Bill gave an unfair advantage to one of the parties to a suit, namely, the plaintiff, in enabling him to initiate proceedings before the tribunal least fitted to decide the point in dispute; and, in the next place, it would operate most unfavourably for the interests of suitors legitimately invoking the aid of Courts of Equity, by obliging their causes to be postponed for the determination of matters which might he better adjudicated upon elsewhere. If they had juries, the court must sit continuously to finish the causes in which there were juries, and the result would he that the other business must be put off. At the present time there was no delay in the Court of Chancery. A cause might be set down to-day and heard the next week. The only delay was in the proceedings in the judges' chambers. This was the weak point in the present system of the Court of Chancery. But the Bill would increase that delay. The proceedings in chambers were very numerous, and necessitated the attendance of a great number of persons; but as this occupied but a short time, they were usually taken at a fixed time when the court rose; but if the convenience of Juries and witnesses must be consulted, there could be no fixed time for the rising of the court. He thought his hon. and learned Friend had been induced to bring forward the Bill on account of the exceptional experience of one branch of the court, where a particular class of business was principally taken, and which was much occupied by hearing motions in commercial cases; and the hearing of the regular causes has consequently been delayed, and those causes have frequently been transferred to other branches of the court. But he would ask him if the present inconvenience experienced in that court would not be greater if there were frequent jury trials in it, than it is now. And he would ask him to State his opinion as to how many causes would have been heard in that branch of the court during the past year if this Bill 116 had been then in operation as a law. However, he would not press his opposition to the Bill if his hon. and learned Friend (Mr. Rolt) who had charge of it would consent not to fetter the discretion of the Equity Judges as to the nature of the cases to which the requirements of the measure should be applicable; otherwise, if the Bill were to pass in its present shape, he only saw one of three alternatives open to them—either they must return to the old system of Masters in Chancery, or they must increase the number of judges, a proposal which he was sure the House would regard with jealousy, or they must recur to the old practice of Chancery delay.
§ MR. HADFIELD
said, he should support the principle of the Bill, which would greatly promote public convenience. The public would be further benefited if the judges who tried causes had the opportunity of going down to the assizes to try the issues of fact which were involved.
§ MR. ROLT
said, that his object in introducing the Bill was to prevent suitors being bandied from one court to another; he thought, that where a court had jurisdiction to deal with any subject, then every question of law and fact necessary to enable the court to administer the required relief ought to be determined by the court itself. When a suitor had been at the expense of having his case argued, it ought not to be in the power of the court to say, "We think the case should go to a Court of Law before this court decides." At present that was done, and when the suitor had been at the expense of going to a Court of Law, the case was sent back again. His object was not to deprive the Court of Chancery of jurisdiction, or to impart jurisdiction to it. His hon. and learned Friend had entirely mistaken the effect of the Bill. It would not enable any suitor to shift a cause from the right to the wrong court; for if the equity judge should think that the cause was more properly triable at law, he would still have the power to dismiss the suit in equity. All he wanted to enact was, when an Equity Court held that it had jurisdiction in the matter brought before it, that then that court should not have the power, upon any question of law or fact incident to the relief sought, to send to another court the suitor, who must afterwards come back again to the Court of Equity for the desired relief. His hon. and learned Friend the Solicitor General had been kind enough to give his consideration to the matter, and he agreed in 117 thinking that the Bill would have the effect he had stated; but to make the matter sure, he had suggested an Amendment which would remove all doubt. That Amendment, he (Mr. Rolt) would gladly adopt. Discretionary power to dispose of questions of law and fact, or to send such questions to law had been tried for years to its utmost limits, and the time had arrived when the court should be bound to determine all the questions that were necessary to he determined to give the relief sought. His hon. and learned Friend said the result of the Bill would be that the jury trials would occupy the court so much that it would not have time to transact the ordinary business. He (Mr. Rolt) did not apprehend that there would be any such extraordinary number of jury cases. It was true, that if the Bill should become law, the court would not have the power to direct any cause or matter to stand over with liberty to bring an action; but by one of the Amendments the court was still empowered, in certain cases, to direct issues of fact to be tried before a jury at law. In many cases, also, the facts would be ascertained before the court itself without a jury; and, on the whole, there could be no doubt the courts would be quite equal, and without any inconvenience, to discharge any duties which this Bill might cast upon them.
THE SOLICITOR GENERAL
said, he did not quite agree with the observations of the hon. and learned Member for the University (Mr. Selwyn). In considering the question it would be convenient to distinguish between questions of law and questions of fact. So far as the proposal of his hon. and learned Friend (Mr. Rolt) went in reference to the expediency of leaving questions of law to be dealt with by the Courts of Equity, it commended itself strongly to the favourable consideration of the House, inasmuch as it was extremely desirable that suitors should not be bandied about from one Court to another as at present during the progress of the same case, unless for strong and clear reasons. Now, there could be only three reasons why a Court of Equity should be permitted at its discretion to send a case to a Court of Law, not that the whole case should be disposed of at law, but that after part of it had been disposed of at law, it should come back to the Court of Equity. The first of these reasons was that of greater convenience, but that point was so obvious that he should 118 not waste the time of the House in arguing it. The next reason was the greater competency of the Courts of Law, but he denied that there was any superior competency in the Courts of Law over Courts of Equity to determine questions of law. That objection, therefore, was got rid of. There was, however, a third reason, which was forcibly put by the hon. and learned Gentleman (Mr. Selwyn)—namely, that it would be a great evil that suitors should be permitted arbitrarily—as the Bill, it was said, would enable them—to transfer to Courts of Equity a jurisdiction which, having regard to the subject-matter of the suit, more properly belonged to a Court of Law. Now, he was sure it was not the intention of his hon. and learned Friend the Member for Gloucestershire to produce such an effect, and he (the Solicitor General) did not think the Bill would have that effect, though he would not pledge himself to that opinion. To obviate, however, all doubt on the point, he had framed an additional clause, the adoption of which he should ask the House to sanction in Committtee, and which provided that nothing in the Act should make it necessary for a Court of Equity to grant relief with reference to matters in which Courts of Law had a concurrent jurisdiction, if it should appear to the Judge that such matters had been improperly referred for decision to a Court of Equity. That clause would, he thought, meet the objections which had been raised by his hon. and learned Friend (Mr. Selwyn) in relation to that part of the Bill which had reference to questions of law. As to questions of fact, he could not conceive upon what ground they should tie up the Court of Equity by more strict prohibitions in this respect than were at present applicable to a Court of Law. He thought the proper course would be to allow a Court of Equity to be in all cases the judge whether a question of fact, which ought to be submitted to a jury, could be more conveniently tried before itself, or before a jury at the assizes, or in London or Middlesex. He would be prepared to propose in Committee that they should have that power. He quite concurred with the learned Gentleman in the opinion that it would be inconvenient to the suitors in equity that there should be a multiplication of jury trials before the court itself; but he thought that his Amendments would prevent the Equity Courts from encumbering themselves with jury trials save in those 119 cases in which it was more convenient that they should take place before the court.
§ MR. MALINS
said, he thought that the operation of the act of 1852 had been very beneficial. Before the passing of that act the custom used to be, as soon as a Bill was filed, to send issues to be tried at common law; and after going through all the courts, they came back again to the Court of Equity, which had very often to decide the point for itself in the end. His impression was, that wherever it was convenient for the court of Equity to try the question of fact as well as settle the law, it Should do so. He should give his Cordial support to the Bill, as he felt assured that, it would on the whole produce a considerable improvement in the despatch bf business in the Courts of Equity.
§ MR. WALPOLE
said, he approved the principle of the Bill; but he thought it would be better to leave things as they Stood, unless the House was prepared to Sanction the proposition—which he was of opinion, it ought to sanction—that whether a question of law or a question of fact arose for decision, all the points incidental to the principal matter at issue should be decided by the court having jurisdiction over that matter.
§ SIR FITZROY KELLY
, said, he was glad to perceive that a first stride was made by his learned. Friend towards conferring on a Court of Equity a much extended jurisdiction; but considering the important interests involved, it would be incumbent on the House to, proceed with very great caution in considering the provisions of the Bill. If they once conferred upon a Court of Equity the power to decide all the questions of law and fact that might come before it, they ought to make it imperative on the court to determine those questions. It ought to be incumbent on the judges of the Court of Equity having jurisdiction over the entire case to decide the question—subject, of course, to an appeal to a higher court. Where there was a concurrent jurisdiction in a Court of Law and a Court of Equity, it was the right of the subject to choose the one or the other; and when he asked for relief in a certain court, that court ought not to have power to abdicate its functions because it might be thought more convenient that the question should be decided in another court. He would suggest to his hon. Friend who had charge of the Bill that some machinery should be provided to give the judge in equity all the powers on a trial before a 120 jury that were possessed by courts of common law.
§ House in Committee.
§ Clause 1 (Court shall determine every question, of law, and law incident to the relief, sought).
§ MR. SELWYN
said, he would submit that the clause, as, worded., did not carry out the intention of the author of the Bill. It made provision for cases in which the court had jurisdiction, but it left untouched cases in which the court might hold that it was not fitting to exercise jurisdiction. The main objection to the Bill was, that it left out of sight the view which defendants might take of cases to which they might be parties. It was in fact, a plaintiff's Bill, and the interests of defendants were entirely forgotten.
§ MR. HADFIELD
said, he proposed to add to the end of the clause the following proviso:—That all serjeants and barristers at law, and all attorneys at law and solicitors, shall, from and after the passing of this Act, be entitled to practise in the said court, notwithstanding any rule or regulation to the contrary; and the said serjeants and barristers at law shall have respectively, the same rank and precedence as they are now entitled to.
§ MR. ROLT
said, that if his hon. and learned Friend (Mr. Selwyn) would look to the clause again, he would see that it required no Amendment on the point referred to by him. The Amendment of the hon. Member for Sheffield (Mr. Hadfield) was wholly unnecessary. There was no rule nor practice of the court, no rule of etiquette nor code of honour, no obligation of any kind whatever, to prevent any barrister practicing in a court of law from appearing in that court without reservation and without complying with any qualification. Common-law barristers might, and constantly did, appear in the Court of Chancery, and were welcomed there as cordially as any gentleman who regularly practised in the Courts of Equity. There was no such rule respecting the Equity Courts as there was with regard to the circuits.
§ Amendment, by leave, withdrawn.
§ Clause agreed to.
§ Clause2 (Where Expense will be thereby saved Issues of Fact may be tried at the Assizes).
THE SOLICITOR GENERAL
proposed an Amendment to the effect that questions of fact might be tried either at the assizes or at the sessions in London 121 or Westminster, whenever the court thought it might be conveniently done.
§ MR. ROLT
said, that if the Amendment were adopted, plaintiffs in the Court of Chancery would still be put to unnecessary expense, inasmuch as, not knowing whether the court would exercise the discretion left to it, they would be obliged to prepare for the trial of issues of fact in the Court of Chancery itself. If, as was not unlikely, their cases should be sent to a Court of Law, they would have to incur all the trouble and expense over again. He believed that the practical effect of the Amendment would be that all questions of fact, and of mixed fact and law, would be sent to be tried at the assizes, or at the sessions in London.
THE SOLICITOR GENERAL
said, his object was to place jury trials, in cases originating in Courts of Equity, upon the same footing as jury trials in cases originating in Courts of Law. His Amendment was applicable only to cases in which, in the first place, the court determined that a jury trial was necessary; and where, in the second place, from the circumstances of the court and of the cause, that jury trial might conveniently be taken either at the assizes or in London, as in cases arising in courts of common law. The interposition of jury trials without arrangement, in the Courts of Chancery, would lead to indefinite and protracted delays in the despatch of business.
§ SIR HUGH CAIRNS
said, the operation of the Bill, with regard to jury trials in the Court of Chancery, would be productive of delay, uncertainty, and expense. The clause, as proposed to be amended, would not provide that the court should direct any action at law to be commenced. The court would simply be charged with the burden of determining the right to relief for itself; but in questions of fact it would adopt the verdict of the jury, on a distinct issue stated by itself and returned direct to itself, instead of taking its own opinion upon the evidence. He believed that jury trials could more conveniently be taken at the assizes or at the sessions in London than in the Court of Chancery itself. Great inconvenience arose from interspersing proceedings in Chancery with jury trials, and, although he would not go so far as to say that a jury trial should never take place in the Court of Chancery, yet, upon the whole, he thought it would be preferable to have issues of fact tried in a Court of Law. The Amendment 122 was in no respect at variance with the principle of the Bill, and he hoped it would be adopted.
§ MR. MALINS
said, he should support the Amendment. The clause as it stood limited discretion to the matter of expense; the Amendment extended it to the question of general convenience, which included expense and the best mode of deciding issue, according to the probable length of the trial and the residences of the witnesses. The Amendment would not maintain existing abuses, because the object of the Bill was to lay down the principle that the court must act for itself, except where it would be most convenient to do otherwise. A rule that the court must try all issues would, by interfering with the business of the court, produce an amount of inconvenience to the public of which the Committee could be little aware.
§ Amendment agreed to.
§ MR. HADFIELD
said, he would then propose to add at the end of the clause the following proviso:—Provided always that the Lord Chancellor, the Master of the Rolls, or one of the Lords Justices, or one of the Vice Chancellors of the said Court, shall be empowered to preside at the trial of any such issue, if it shall he deemed expedient to do so, or the justice of the case shall require it or render it advisable.
§ Proviso negatived.
§ Clause, as amended, ordered to stand part of the Bill.
§ Remaining Clauses agreed to.
THE SOLICITOR GENERAL
said, he wished to introduce a new clause, providing that in cases where the object of the suit is to recover or defend possession of land under a legal title, such relief only shall be given in equity as would have been proper if the Act had not passed.
§ Clause added to the Bill.
§ Preamble agreed to.
§ House resumed.
§ Bill reported; as amended, to be considered on Wednesday next, and to be printed. [Bill 61.]