330

Law Bills before Parliament.-Trial by Jury.

and an unanswerable argument in favour of some sort in this country a system of selfIt may be very dangerous to the adoption of the system of procedure government. prevailing in those "model" tribunals. withdraw from them that duty of assisting in the administration of Justice. I do not say that I have conclusively made up my mind on the subject, but I must say it is a subject to be approached with very great delicacy and caution. My noble and learned friend (Lord Campbell), who has had the advantage, both

The important change introduced in the law of evidence, by the Act 14 & 15 Vict. c. 95, rendering the parties to a suit competent and compellable to give evidence, proceeded altogether upon the allegation that the unrestricted examination of liti- as a Judge and as an advocate, of attending in gant parties worked well in the County Courts. Whatever may be the operation of that Act in the Superior Courts, where witnesses have been previously examined, their evidence contrasted and compared, and their characters investigated and known, the concurring testimony of all disinterested observers is, that in the County Courts, the constancy with which parties contradict each other, upon matters of fact afford ing no room for mistake, indicates a deplorable disregard for the obligation of an oath, and is well calculated to increase the demoralisation by which it is produced. Be this as it may, it is now proposed to get Fully concurring in the suggestion that rid of jury trial in civil actions, upon the the substitution of a Judge for a jury in the assumption that in the extensive range of determination of matters of fact is a subject cases falling within the cognizance of the of the greatest delicacy, and requiring the County Courts-in ninety-seven cases out of highest degree of caution, with all due dea hundred-the parties elect to have their ference for the opinion of Lord Cranworth, causes tried by a Judge alone, and prefer and a full appreciation of the advantages he his decision to the verdict of a jury upon possesses in obtaining the materials upon contested facts. The Lord Chancellor, which he founds his opinion from official though cautiously avoiding any expression sources, we venture respectfully to doubt, that could be construed into an approval of whether the substitution of a Judge for a the change proposed, adopted the presump- jury has been so entirely successful as is tion as admitting of no doubt, that the assumed? That ninety-seven out of every trial by Judge instead of by jury had been hundred of the plaints entered in the "eminently successful" in the County County Courts are disposed of without Courts. The matter is of such great im- the intervention of a jury is granted. But portance that we make no apology for it does not follow that the majority of transcribing from the ordinary channels of cases disposed of without a jury would not information all that is reported to have have been disposed of more to the satisfacfallen from Lord Cranworth on this subject, which is as follows:

assize towns and of seeing the proceedings in the Courts, cannot, I am sure, have failed to observe, that at the end of the assizes, those who have been summoned as jurors quit the assize hall a much more intelligent set of men than they entered it; and if that be the case, it ought not to be any very trifling advantage that should lead us to abandon such a system. Mechanics schools may afford valuable instruction, but I doubt if there is any school that reads such practical lessons of wisdom, and tends so much to strengthen the mind, as assisting as jurymen in the administration of Justice. I think, therefore, that this is a subject which deserves very serious attention."

tion of the litigants if the disputed facts had been determined by a jury, nor does it follow, as assumed, that the parties in all the cases tried by a Judge without a jury did not desire a jury.

"It is said that the trial by Judge, instead of by jury, has been eminently successful in the County Courts. Undoubtedly that has been the case; and it has been a matter of inUndoubtedly, the County Courts' Act quiry before the Commissioners whether the (8 & 9 Vict. c. 95, s. 70), provides, that same principle may not usefully be extended in all actions where the amount claimed to the cases tried in other Courts: whether shall exceed five pounds, it shall be lawful you may not give up the machinery of a jury, for the plaintiff or defendant to require a and leave it to the Judge to decide the question in dispute? I think, in considering such jury to be summoned to try the cause," a matter, we ought not to lose sight of this and upon the party requiring a jury giving fact that in sanctioning an arrangement of certain notice to the clerk of the Court, and that sort, we should be taking a step towards depositing the sum of five shillings for payunfitting for their duties those who are to send ment of the jury, he may insist upon representatives to the other House of Parliaing five jurymen empannelled and sworn to ment, who are to perform municipal functions When our readers are rein towns, and who are to exercise a variety of try the cause. those local jurisdictions which constitute in minded, that in nine cases out of every ten

hav

Law Bills before Parliament.-Office of Examiner Bill.

331

pute to those who have also directed their attention to the evidence.

In this, as is in many other instances, where it has been much relied upon, the experience of the Judges of the County Courts is not only inconclusive, but unsafe and dangerous.

cases brought before the County Courts the suitors are unable or unwilling to employ either counsel or attorney, it is not to be wondered at if in such cases neither party would be willing to incur the expense of a jury. In cases in which the assistance of a jury might be legitimately required, however, it is notorious that suitors in the It is only due to the learned Lord Chief County Courts are deterred from insisting Justice of the Queen's Bench, who was apupon the right to have a jury, by the idea pealed to in the Lord Chancellor's Speech, all but universally prevailing, that a jury is to state, that he has unhesitatingly and deregarded by those in authority in the County cidedly declared, both in Parliament and Courts, as a nuisance and impertinence, from the Bench, that he is altogether opand that the summoning of juries is dis-posed to those who desire to dispense with countenanced as a proceeding attended with trial by jury.

great loss of time, and which imposes great additional labour and trouble upon the learned functionary who presides.

OFFICE OF EXAMINER BILL.

PARLIAMENTARY DIVISION.
THE consideration in Committee of a

make further provision for the execution of the office of Examiner of the High Court of Chancery," gave rise to a discussion and division upon a matter in which the larger branch of the Legal Profession is especially interested.

prac

So recently as on the last day of Hilary Term, the Court of Queen's Bench made a rule absolute for a mandamus to a County Court Judge. In that case, there had been bill, prepared and brought into the House a trial by the Judge, which proved abortive, of Commons by the Solicitor-General, "to and a new trial was ordered, when both the litigants desired that the plaint should be tried by a jury; but the Judge thought, that as the intention to summon a jury was not communicated to him upon the application for a new trial, he had authority to prevent the parties from trying before a jury, a construction of the Act of Parliament which was emphatically corrected by the Court of Queen's Bench. The trial of disputed question before a jury consisting even of five, necessarily occupies a longer time than if the question was to be disposed of by a single Judge, and it compels the Judge not only to take notes of the evidence but to make up his own mind as to the real question at issue, and to submit that question to the jury. An indolent or an unconscientious Judge may, without any clear idea of the merits, decide a cause rightly or wrongly, but the obligation to sum up the facts to a jury, and ask for their opinion, is a salutary check upon a careless Judge, and affords a security to the suitor that the merits of the case have not been wholly overlooked. In dispensing with the machinery of a jury, therefore, we not only interfere with the civil and municipal education of those who discharge the functions of jurymen, as suggested by Lord Cranworth, but the suitor loses the guarantee which trial by jury affords, that the Judge has mastered the material facts of the case, and is competent to submit the question in dis

The ostensible object of the bill is to provide an altered form of oath for the Examiners, which is alleged to be expedient by reason of the alterations in the any tice of taking the examinations and dispositions of witnesses," established by the Act 15 & 16 Vict. c. 86. The more obvious and important purposes to be effected is, to confine the appointment of Examiners to barristers of seven years standing, and to make comfortable arrangements with respect to the salaries and retiring pensions of the fortunate appointees.

pro

Upon the motion of the Solicitor-General, that the 2nd clause, by which it is posed to provide that," any person to be hereafter appointed to the office of Examiner of the High Court of Chancery, shall be a practising barrister in some or one of the Courts of Law or Equity, of not less than seven years standing in the Profession," should stand part of the bill, Mr. Mullings took the opportunity to protest against this fresh attempt to exclude solicitors and attorneys from offices which they had heretofore filled, and for which they were as likely to be competent as the members of the other branch of the Profession. The Hon. Member for Cirencester desired no favour for that branch of the Profession

I See Regina v. The Judge of the Kent County which on this, as indeed on every other occaCourt, L. Obs. Reports, p. 283.

s 2

332

Examiner Bill.-Oaths in Chancery Bill.-Lord St. Leonards' Bankruptcy Bill.

Masters Extraordinary originally limited to 20 miles from London, was by Lord Brougham's orders of 21st December, 1833, section 33, extended to places distant not less than 10 miles from Lincoln's Inn Hall.

sion, he has ably and judiciously represented: appointments to 10 miles from Lincoln's all he insisted on was, that the individual Inn Hall. Now, difficulties may frequently entitled to appoint should be at liberty arise in ascertaining the precise boundary in filling the office of Examiner upon a va- of such jurisdiction, and where the oath cancy, to choose from the whole Profession, was administered beyond the 10 miles it and not be fettered in his selection by a sta- would be a nullity. Before the abolition of tutory qualification which it is at least pos- the office of Masters in Chancery it was sible may on some future occasion deprive essential that their jurisdiction should not the public of the servant best fitted to dis- be interfered with, and the powers of the charge the duties of the office efficiently. This most reasonable proposition, which interfered in no respect with existing arrangements, and protected the public interests, was negatived on a division by a majority of 72 to 30. That the members of the Government should have supported the motion of the Solicitor-General is not, perhaps, to be wondered at, but why independent members, not connected with the ministry, should upon such an occasion vote against a principle enabling the representatives of the Crown to appoint those persons who may be deemed most competent, is not so easily to be accounted for.

We observe by the division list, that the following lawyers voted with the SolicitorGeneral in the majority George Bowyer. Rt. Hon. E. Cardwell.

John M. Cobbett. Sir A. Cockburn. E. H. J. Crawfurd. Rich. B. Crowder. Samuel Gregson.

William Laslett.
Robert Lowe.
James Moncrief.
Thomas Phinn.
John Stapleton.
Rt. Hon. S. H. Wal-
pole.

Mr. Mullings was supported by the votes
of the following lawyers :-
W. Hodgson Barrow. Edward Grogan.
Isaac Butt.
P. McMahon.
Wm. R. Fitzgerald. R. Murrough.

There is now no reason for limiting within any specific distance the power to administer oaths by such persons as the Lord Chancellor may think proper to appoint. Indeed it may happen that the oath of an aged or infirm person may be required to be taken at a place just beyond the 10 miles from Lincoln's Inn, but considerably distant from the residence of a country practitioner, and thus occasion unnecessary expense and delay, especially as many London solicitors have their country-houses several miles from town, though they attend their offices daily.

By the 6 & 7 Vict. c. 82, the Lord Chancellor possesses the same powers for granting commissions for taking affidavits in Scotland and Ireland as in England. The Judges also of each of the Common Law Courts grant commissions to attorneys and to the Judges' clerks to administer oaths in their Courts. And in order to

make the designation of the officer uniform in all the Courts, the solicitors to be appointed under the new Act should be called "Commissioners to administer Caths in Chancery," instead of "Country agents" and "London agents," and such designation will be applicable to them whether in the country or in London, Ireland or Scotland.

Other and early opportunities will arise for the assertion of the principle for the present unsuccessfully contended for, and we trust that no such opportunity will be allowed to pass over, without taking the It is also suggested that the 5th section sense of the House upon it. The public may extend to other purposes as well as the interest is identified in this matter with registration of deeds and wills, and to the justice to the attorneys and solicitors, and Isle of Man as well as the Channel not only members of Parliament, but those Islands. who make members, cannot fail in time to understand the true bearings of the ques

tion.

OATHS IN CHANCERY BILL.

LORD ST. LEONARDS' BANKRUPTCY

BILL.

THIS Bill, which was introduced on the 10th inst., comprises the following provisions:

THE 2nd section of this Bill, which authorises the Lord Chancellor to appoint the Lord Chancellor may declare that the same 1. On vacancy in Office of Commissioner, persons practising as solicitors to admi- shall not be then filled up; and upon any new nister oaths in Chancery, limits the London appointment the Lord Chancellor may require

Lord St. Leonards' Bankruptcy Bill.

the person appointed on such vacancy to act in aid of other Commissioners.

2. Registrars may be removed by her Majesty upon certificate of the Lords Justices. 3. Salaries of officers to commence from appointment.

4. Official assignee to be paid according to recited scale, subject to variation to be made by the Lord Chancellor with advice of Lords Justices.

5. Per-centage received by clerks of County Courts to be paid over to the Consolidated Fund; per-centage not to be payable in future out of insolvents' estates administered in County or Insolvent Courts.

6. Commissioners may rescind, vary, &c.

rules and orders.

7. Trader signing after summons, an admission of part of a debt, and not paying such part within a certain time, an act of bankruptcy. s. Excepted articles to be allowed to a bankrupt.

9. The broker shall make an inventory and valuation of the remainder of the bankrupt's household furniture, &c., which shall not be sold without the order of a Commissioner.

10. If the bankrupt shall be entitled to any allowance, his household furniture, &c., if unsold to be taken in lieu of money.

11. Refusal or suspension of certificate to be in the discretion of the Court.

12. Certificate not to specify cause of bankruptcy, or be distinguished by classes, but Commissioner may certify his approbation of bankrupt's conduct.

13. Petition not to be annulled by consent, till after the second sitting.

The following are the provisions relating to deceased traders, or what have been familiarly called the "Dead men's clauses:"

14. Creditors of deceased traders may petition the Court of Bankruptcy for distribution of the estate of the deceased.

15. Proceedings on such a petition, and adjudications thereon if no cause shown by exe

cutors.

16. What shall be required by executors, &c., showing cause against adjudication. 17. Executors or administrators of deceased trader may petition for adjudication.

18. No adjudication to be made where proceedings have been taken for administration in equity.

19. Court may issue warrant to secure the property of the deceased in certain cases.

20. Before adjudication, Court may summon witnesses to give evidence of trading, &c.

21. Certain provisions applicable to petitions for adjudication of bankruptcy to apply to petitions under this Act.

22. If adjudication not made within three months, petition to be dismissed.

23. Notice of adjudication and of sittings for proof of debts.

24. Effect of the adjudication and proceedings thereon.

333

25. Priority of funeral and testamentary expenses preserved.

26. Certain savings of rights of executors. 27. Savings applicable to the cases where there is no proof of act of bankruptcy within three months before the trader's decease, &c.

28. Savings for bona fide acts done in due course of administration before the filing of the petition for adjudication, or notice of the intention to file it; creditors paid in full before filing of petition to refund rateably in case of deficiency of assets.

29. Adjudication to be a bar to proceedings at Law or in Equity.

30. Surplus after payment of debts in full, with interest, to be paid to executors, administrators, or assigns of the deceased.

31. Fees and payments on administration of deceased traders' estates.

Then a new power is given to the Lord Chancellor to appoint the Bankruptcy Commissioners and Registrars to act as Officers of the Court of Chancery.

32. Power to Lord Chancellor to appoint Commissioners, &c., of Court of Bankruptcy in the country to be Officers of the Court of

Chancery.

38. Lord Chancellor, &c., to make general rules for enabling the Court of Chancery to send inquiries to Commissioners in Bankruptcy, and for taking evidence, administering oaths, &c.

34. Under orders of reference the Commis

sioners to have same powers, &c., as Masters in Chancery formerly had; but result to be stated in a short certificate, and not in a formal report.

35. Rules of the Court of Chancery to prevail on examination of witnesses.

36. Persons summoned as witnesses bound to attend.

37. Penalties for perjury.

38. Lord Chancellor, &c., to make rules for carrying Act into execution.

39. Solicitors not to be retained by other solicitors.

Bankruptcy Bill-Repeal of Certificate Duty.-Removal of the Courts.

Court, whether in London or elsewhere, and whether under this Act or any other Statute or otherwise; and after the first appointment subsequently to the choice of assignees no solicitor shall be removed or changed, except by order of the Court made upon motion."