/ I ,- -> _x: ?.*?. SECOND ADDRESS TO THE PUBLIC, AND MORE ESPECIALLY TO THE MEMBERS OF THE HOUSE OF COMMONS, ON THE PRESENT UNSATISFACTORY STATE OF THE COURT OF CHANCERY ; AND SUGGESTIONS FOR AN IMMEDIATE REMEDY. BY GEORGE SPENCE, ESQUIRE, ONE OF HER MAJESTY S COUNSEL. " The speedy and 'satisfactory administration of justice is the FIRST AND MOST SACKED duty of the Sovereign." Speech from the Throne, 1836. LONDON: W. WALKER, STRAND; RIDGW AYS, PICCADILLY , 1839. LONDON: SAVOY STRKFT, STRAND. t SUMMARY. Present state of the court Increase of arrears since last Ad- dress Present prospect of the suitors. Mr. Miller's opinions as to the present state of the Courts of ultimate Appeal, and his suggestions for reform stated. Immediate appointment of a new Judge again urged. Other alterations and improvements proposed Permanent Equity Judge in the Exchequer Revisal and consolidation of the orders and practice of both Courts Masters' offices to be opened to the public Part of the business to be sent to local officers Distinct office for taxing costs to be erected Superintendent of Registrar's office Appeal to the public to assist in bringing about the requisite reforms. 1.12101 7 AN ADDRESS, 4-c. THE present state of the Court of Chancery, the communications I have received, the observations which I have read in several publications since I issued my last Address, and the appearance of a new and most important work, by Mr. Miller, Q. C., have induced me again to take up the subject, and to enter a little more at large upon some of the to- pics which before were only slightly noticed, though I am still without much of the information which is required for proposing any comprehensive scheme. I will commence by stating what has been the progress made in the Court of Chancery during this interval, and what is the present state of the business of the Court. It will be remembered, that on the llth day of January 1839, there were 859 matters in arrear in 6 the Court of Chancery.* From the printed lists delivered to counsel at the beginning of the last term, it appears that on the first day of term, namely, 15th of April, 1839, the number of matters in arrear was 856 ; of which 607 were in arrear in the list of the Lord Chancellor and Vice-Chan- cellor ; 24-9 at the Rolls. The arrear of appeals before the Lord Chancellor appears to have in- creased from 6 to 14. f This is a new and by no means a consolatory feature. In order to ascertain what progress has been made in each court towards disposing of the arrears of original causes and further directions, I will take two of the causes noticed in my former Ad- dress, and trace their progress. First, as to the Rolls. The cause in which Lord Holland J is a defendant, stood No. 290 in the list of January 1839 ; at this day, 10th of May, that is, after fourteen weeks of sitting for the despatch of business, this cause stands 153 off, so that 137 causes in the general paper have been disposed of. On the llth of January 1839, there were 10 causes behind Lord Holland's ; on the 10th of May 87 ; so that deducting the number of causes heard from those which have been added to the list since llth January 1839, there appears to be a decrease of 60. This decrease is, I believe, to be * First Address, p. 2. f Now increased to 1 7. t Ib. p. 9. attributed, in a considerable degree, to a rule which has been established at the Rolls, of advancing what are called short causes, even though some of the parties may not consent to be heard out of their turn one day in each week. This practice, which is the offspring of the present encumbered state of the court, is scarcely reconcilable with the right of the other suitors to have their causes heard in regular order,* and may ultimately be productive of some inconveniences : its operation has been to reduce the causes in the list at the Rolls to those which are for the most part heavy con- tested causes. Let us now turn to the list of the Lord Chan- cellor and Vice-Chancellor. Contested petitions, motions for injunctions, and other urgent business, appear to have occupied nearly the whole of the Vice-Chancellor's time from the llth of January to the 15th of April ; for the cause of Toms against Toms,t which stood No. 71 in the list of January, stood 69 in the list of April. It was not heard till the ?th of May instant, at which time, owing to the death of one of the parties whilst it was wait- ing for a hearing, it was coupled with one of those * See Lord Cottenham's Observations, Mylne and Craig's Re- ports, vol. ii. p. 453. f See First Address, p. 8. 8 expensive appendages, called a supplemental cause, which I noticed in my former Address.* We will now go to the bottom of the list, in order to ascertain what has been the progress in this court. Lord Harewood's causef stood No. 507 in the list of January ; it stands No. 468 in the list of April, deducting the demurrers ; so that between the 1 1th of January and 15th of April, 39 causes which stood before it were disposed of. On the llth of January there were 29 causes behind Lord Harewood's ; on the 15th of April there were 131 ; so that for the 39 causes which had been disposed of at that time, 63 had been added. There are now 140 causes behind it, and it now stands No. 469 ; so that the number of causes which have been set down, and are wait- ing for hearing, beyond those which have been heard down to this time, is 73. The increase in the Vice-Chancellor's list, therefore, exceeds the de- crease in the list of the Master of the Rolls ; and this, notwithstanding that the extent of the arrears is operating largely to prevent new causes from being set down. The amount of this increase in three months in the Vice- Chancellor s Court, exceeds the whole number of causes in the general list heard by * See First Address, p. 7. f Ibid. p. 9. There are three causes in the list at the Rolls which have^re of these appendages. the Vice- Chancellor during the year 1838. Per- haps, if the Vice-Chancellor had adopted the rule before noticed, namely, of permitting short causes, though without the assent of some of the parties, to be advanced over the long causes, he might have reduced his arrears in the same proportion as at the Rolls ; but he would have caused a corresponding arrear in his list of motions, which even now, I understand, is considerable. According to the mode of calculation pursued on a former occasion,* to the accuracy of which I have as yet heard no objection, in the event of the Lord Chancellor not being able to hear any original causes and the increase in the arrear of appeals before noticed renders it improbable that even the present Lord Chancellor will, for some time at least, be able to give any such assistance it would be about 7 years before the causes at the end of the present list could be heard for the first time. It would take about 15 years, allowing one year in the Master's office, before these causes could be heard on further directions, or before any creditor or legatee, who may happen to be a party, could obtain payment of his demand. ~\ But if any disappointed creditor, whose claim should be disallowed or cut down by the Master, or any other dissatisfied party, should take an objec- tion to the Master's report, which should prove to be well founded ; instead of any decree being made * First Address, p. 9. f See First Address, p. 5. 10 at the end of the 15 years, the whole matter might have to be sent back again to the Master to cor- rect his report. Another year, or thereabout, must then be again spent in the Master's office, and then another 7 years' delay must occur be- tween the setting the cause down on this new report and the hearing, making in all a delay of 23 years before the fruits of the suit could be obtained. But even this is on the supposition that the ar- rears should not go on increasing as they have done. No calculation can be made as to the dura- tion of such a suit on the contrary supposition. In fact, the experience of the last three months leads to the conclusion, that unless some decisive remedy be adopted, bankruptcy, insolvency, and death,* may hereafter be the finishers of contested chan- cery suits, but that the judges never can. The necessity, then, for immediate interference has become more urgent even than when my last Address was issued. Mr. Miller, in the work before alluded to, has, amongst other subjects, entered into a considera- tion of almost all the topics which I have touched upon in my former Address, and with so much skill and judgment, that his observations cannot but make * There are now no less than 78 abated causes in the Vice- Chancellor's list, some of which have remained in this state since 1829, and so perhaps will ever remain. 11 a great impression on the minds of all who shall give them an attentive consideration. There are many instances in which I have had the satisfaction of observing- a coincidence of Mr. Miller's views with those which I had adopted. His opinion as to the mischiefs arising from the union of the political and judicial functions* is expressed in the following words : " I hope, however, that no Judge will preside in the court and sit on the woolsack at the same time. It would hardly be possible that the same person should occupy both seats, but I hope the continuance of that anoma- lous arrangement will never be proposed"^ What I had conjectured in my former Address, as to the mischief which might possibly arise from this union in the person of a judge eminently qua- lified for a judicial station, has been verified to the fullest extent. On the late resignation of Lord Cottenham there was one universal expression, by persons of all ranks and all parties, of the deepest regret that the Court of Chancery should be deprived of his judicial talents, and I believe it has had con- siderable effect upon the minds of those who have hitherto been averse to the separation of the poli- tical and judicial functions of the Chancellor. The glaring defects in the appellate jurisdiction of the House of Lords, and of the judicial committee of the Privy Council, are pointed out by Mr. Miller * First Address, p. 15 and 27. f Miller, p. 105. with boldness and truth.* The author has entered into a concise but comprehensive examination of the various plans which have of late been proposed for erecting a new court of ultimate appeal ;f and, after a careful examination of the principal argu- ments which have been urged against the establish- ment of a permanent court of ultimate appeal in the House of Lords,J Mr. Miller comes to the conclusion, that a court of ultimate appeal, insti- tuted upon the principles proposed by Lord Lang- dale^ is to be preferred. No one can accuse Mr. Miller of advancing opinions without due consideration, nor is he liable to be led away by authority j all his conclusions are founded on experience or reasonable deductions : and when we look back and see how many of the suggestions which he offered in 1825 have since been adopted, he cannot be considered as a mere speculative reformer. When next, therefore, Lord Langdale shall urge his views on this important sub- ject in the House of Lords, the way will have been prepared not only by himself, but also by means of the publication above alluded to, for a much more satisfactory discussion than that which took place in June 1836. Mr. Miller's opinion also coincides with Lord Langdale's as to the necessity of the superintending * Page 107, et seq. f Page 105 to 150. t Page 124 to 140. See First Address, p. 14 and 29. 13 care of a minister of justice.* Indeed, that it should be left to the voluntary exertions of individual prac- titioners to expose such a state of things as now exists in the Court of Chancery, and to suggest remedies to the government and the legislature, affords cogent evidence of the want of such a func- tionary. If, then, there were any reasonable hope of any plan on the principle of that proposed by Lord Langdale, and supported by Mr. Miller, | I should at once propose its adoption, and that the numbers of the judges of first resort should be regulated by the demands of the suitors, and that they should in future at least be put as nearly as possible on an equality. But I confess that I am still unable to entertain a hope that at present such a plan would meet with the support of those whose concurrence is necessary to its consummation. The appoint- ment to so many high and important judicial offices, as it would be necessary to create under the system now under consideration, must ever present a most formidable obstacle ; and I fear that it is too much to expect, however much it is to be desired, that the leaders of the two great parties in the State should come to any arrangement for appointing those who are best qualified to fill such high and * Miller, p. 162 3. First Address, p. 14. t The plan of Mr. Lynch, 1836, is very nearly the same in principle, so far as regards the court of ultimate appeal. 14 important functions without reference to political opinions, which alone would get rid of this difficulty. Lord Cottenham's plan,* which, after that of Lord Langdale, has the strongest claims for adop- tion, is open to objection in principle, by reason that it leaves the judge of the court of ultimate ap- peal a political and removable officer, and for the other reasons pointed out by Lord Langdale and Mr. Miller;! and though I was at first inclined to think with Lord Langdale that, if carried, it would not impede the further changes contem- plated by his Lordship, yet, on further consideration, I have been forced to come to a different conclu- sion ; for it would be difficult, as it were, to degrade a Chief Justice in Equity by taking from him his appellate jurisdiction, and placing him on an equa- lity with the other Judges, which must be done if the more comprehensive plan of Lord Langdale were afterwards adopted. Under these circumstances, as it is proved that the delays and evils are increasing, I repeat that an additional judge ought, in my judgment, to be immediately appointed. This will not, as it appears to me, interfere with any ulterior arrangements. Additional strength to this extent will probably be necessary, whatever plan may be ultimately adopted, more especially if bankruptcy be brought back to the Court of Chancery, as in all probability it will ; and * First Address, p. 13. f Page 46, &c. ; and see First Address, p. 13, 29, and 3, note. 15 even at the risk of a repetition of the charge of " tampering 1 with the evils by recommending Lord Lyndhurst's paltering scheme,"* I do most ear- nestly, for the sake of the suitors, who cannot wait for the adoption of a more complete or unobjection- able scheme, recommend its immediate adoption.! In my former Address I mentioned that other alterations were requisite. It may be well, with a view to a comprehensive arrangement, to enter a little more into detail as to some of the required alterations, so far as they can be made intelligible to the public generally. First, as to the Court of Exchequer. J I should propose, with Mr. Miller, in addition to any alte- rations in the Court of Chancery, that a perma- nent Equity Judge should be appointed for this * Spectator, 27th April, 1839. The Legal Observer of April 20, 1839, which, as the organ of the principal practitioners in this court, is entitled to the greatest consideration, also de- nounces the mere appointment of a new judge. " We trust," says the writer, " we shall have no mock settlement of the important question ; the disease will not admit of palliatives, and an additional judge would be nothing better, by Mr. Spence's own confession." That publication has advocated the separa- tion of the political and judicial functions of the Lord Chancellor ever since 1833. f The Legal Examiner, for April last, p. 343, concurs in this view. First Address, p. 37. J Mr. Miller, p. 104, has spared me the necessity of exposing the present unsatisfactory state of this court. I will only add, that many of the evils, such as recitals, copy money, and the like, which I pointed out in a former publication on " The 16 court, and that the whole of the officers of the court should be reconstituted on the model of those of the Court of Chancery, and that the prac- tice of both courts should be identified ; and that the same right of appeal as may ultimately be given from the Judges in Chancery should be given to the suitors in this court. I am inclined to prefer this plan rather than an entire amalgamation with the Court of Chancery, because, looking to the opinions on the subject that have been recorded,* it is much more likely to be carried, and I am not aware of any considerable practical advantage that would be gained by the amalgamation, that might not be counterbalanced by the courts remaining separate. But before any other Court shall be compelled to adopt the practice of the Court of Chancery, it is proper, nay necessary, that it should be carefully revised, and if any part of the practice of the Court of Exchequer is preferable, let it be adopted. Mr. Miller's recommendations for establishing an au- thentic code of practicef I entirely adopt. I will Evils and Abuses of the Court of Chancery," 1831, p. 36, 5-2, 55, &c., and now remedied in that court, exist to a considerable extent in the Court of Exchequer. * Lord Redesdale's Speech, House of Lords, 21 May 1829; Lord Tenterden and Lord Eldon, same debate ; Mr. Bell's evi- dence, Appendix to Ch. Comm. Report, p. 390 ; and the Speeches of Lord Lyndhurst and Lord Langdale in the debate in the Lords, 13 June, 1836; of Lord Abinger, 28 April, 1836. f Page 90, 91. 17 further remark, that the orders of the Court of Chancery are at present a confused mass : these, at least, ought to be methodized. In April 1832, I with considerable pains arranged the several orders in Chancery, and caused them to be printed and delivered to the Lord Chancellor, that the whole might be revised and reduced into an uni- form, intelligible system, and that any new orders might be added in their proper places. My labour was lost, for I never again heard of them, and I presume that, as official perquisites, they have long since gone to the chandler's shop. New orders have since been issued, without reference to the old ones ; on each new issue it requires a treatise to enable the practitioners to know how the new orders are to be dovetailed with the old ; and, on any doubt arising, each judge puts his own construction on the orders ; and hence we have reported decisions to refer to, for the purpose of construing these orders. Next as to the Master's offices. " The Masters perform functions much too important to have their doors shut " The mode in which I would at once open these offices, which are now mere private chambers, to the public,* and provide for the greater despatch of business there, is this : Each Master should affix on the door of his office, or court, for such it ought to be, a list of the business which has been appoint- ed for the day, with the names of the solicitors on both sides, and every one should have free access to * See First Address, p. 32. C 18 the Master at all times during judicial hours; and if, by reason of the non-attendance of the parties in any matter at the appointed time, or, by reason of its going off, the Master should be unoc- cupied, any of the parties in the other matters who may be ready should be at liberty to pro- ceed with their business, without reference to the hour fixed by their warrant. If once it were un- derstood that there was to be a change, many other improvements would be suggested by the Masters themselves. Mr. Miller states, that he is persuaded that most, if not all, of the gentlemen by whom the office of Master is at present occupied, would cheerfully acquiesce in any arrangement by which their labours would be made more serviceable. I have reason to believe that by some of those g'entlemen the plan I have suggested would not be disapproved. I am confident that, but for the overwhelming duties that the Lord Chancellor has to perform, some regulation for the due despatch of business in the Masters' as well as the other offices would have been long since made. I can positively say, that it was in this belief that some of the members of the Committee of the House of Commons on the Chancery Regulation Bill acquiesced in giving the Masters fixed salaries. Lord Cottenham, Lord Langdale, and Lord Brougham, on the 26th of February last, on the occasion of a Bill for Local Courts being dis- cussed in the House of Lords, stated most truly, 19 that at present the system pursued in the Court of Chancery with respect to swearing answers, the examination of witnesses, and other matters, in causes arising in the country, is most complicated, expensive, and inconvenient j and that it might be highly advantageous to commit the performance of those duties to local officers. In 1833 I prepared a series of clauses to effectuate this most desirable object, which were incorporated in a bill for esta- blishing local courts. The bill was introduced into the House of Lords in that year ; but there the matter ended. The benefits which would result from such an improvement appear to me to be incalcu- lable ; and I am not aware that any one would offer to it any resistance. Next as to the Six Clerks' Office, particularly as to the taxation of costs. I have explained, in a former publication before referred to,* what is the present system of taxing costs, that is, of moderating the bills of the solicitors ni a cause, a most important subject to the suitors, whether such costs are to be paid by the client in- dividually, or out of the estate in litigation. I can hardly expect that the public would follow me in any detailed account of the absurdities of the present system. " Many of the rules as to taxation," ob- serves Mr. Miller,f "contradict the plainest maxims * See Evils and Abuses of the Court of Chancery, 1831, p. 15, et seq., and p. 64. t See Miller, p. 93, and First Address, p. 6. of reason and justice." But absurdity is not the only evil complained of, as will appear from the following account of a taxation which has come to my knowledge. The cause of Stubbs against Sargon was insti- tuted some years ago, to determine the rights of the several legatees under the will of a person who had realized a considerable property in trade. The costs of the suit up to the hearing of the original cause were taxed and paid some time since. Bills of the costs incurred in the subsequent part of the suit were lately carried in to be taxed, preparatory to their being also paid out of the estate. I have put in columns the amounts taken off on taxation from a few of these bills, and what the estate has had to pay for the benefit thus derived : Costs of taxati s. d. s. d. Plaintiff's bill 71 8 10 78 14 3 Deft. Field and wife 24 17 62 8 2 George Stubbs 3 60 15 0! Win. Stubbs 12 15 62 6 Silver and wile 27 17 2 68 14 9 Pound and wife 48 15 63 16 6 188 12 396 9 2 So that such is the expense of this process under the present system, that in the instances stated, it cost the estate, and thereby the parties, 3961- 9s. 2d. in order to gain the sum of 1881. 12s. Sd. ; the en- tire costs of the mere taxation amount to about 700/. In the cause of Hughes against Wyme, they 21 are nearly to the same amount. There are, no doubt, many other causes which would afford an equally instructive lesson. The late Lord Redesdale,* no speculative reformer, was of opinion, that if it should be thought fit to take from the Masters the duty of taxing costs in- curred in Chancery, an office for the taxation of costs should be created, consisting of persons quali- fied for the duty. In effect, the Masters have long ceased to perform this duty, and it is now per- formed in the Six Clerks' Office. In 1882, a bill was prepared, after great conside- ration, for carry ing Lord Redesdale's proposition into effect, so far as regards the Court of Chancery : the provisions of that bill were incorporated into the Chancery Regulation Bill as originally brought into the House of Lords, but were there struck out. A distinct bill, with the same object, was introduced in July, 1833 ; and there this matter also has rested. It is not the saving of expense only, which would ultimately be very considerable, that induces me to press the revival of this measure ; it is mainly with a view to the establishment of an uniform and rational system of taxation, which never can be the case and I believe I am uttering the sentiments of a large proportion of the profession under the present system . There are several gentlemen in the Six Clerks' Office eminently qualified to perform the duties of * Considerations on Report of Chancery Commissioners, 1826, p. Ill, 112. taxing officers, as well as to frame a rational system of taxation, if relieved from their present anoma- lous situation ; and as ample compensation would, no doubt, in this case, as it has in all other cases, be given to those who might suffer from the change, perhaps no serious obstacle would now be raised to this essential improvement.* If a new Judge should be appointed before this measure be adopted, of course it would greatly increase the amount of the claims for compensation. I may here remark, that some superintendent, to whom solicitors might apply in the event of any alleged neglect or delay in the ministerial depart- ment of the Registrars' Office, is called for : the re- gistrars themselves are too much occupied with their more important duties to undertake any such office ; nor, indeed, have they any authority. In addition to the disappointments and mortifi- cations which every one who undertakes the refor- mation of the Court of Chancery must meet with, of which I have above stated a few specimens, there is an apathy as well as unwillingness to lend the slightest assistance, either in the House of Com- *In 1832 it was proposed that compensation should be given, not only for the present emoluments, but for the expectancies of those who are at the bottom of the scale. This would keep up the present rate of fees for some time, if the compensation is to be paid out of fees ; but it seems to be a fair and reason- able mode of compensation, considering the constitution of the office. 23 mons or out of it, even on the part of those who are loud in their condemnation of the system as it is, which is almost enough to deter the most ar- dent reformer from giving himself any trouble on the subject Yet there is scarcely a man who pos- sesses property, or who holds a station in society, which may cause him to be selected as a trustee or executor, who is not materially interested in the reform of the Court of Chancery. In this court the chief civil suits of the kingdom are conducted. Every man who has a mortgage may have to resort to this court to get in his mo- ney, and, " as the law now stands, multitudes of trustees, executors, creditors, and legatees, are com- pelled to go into equity for the establishment of the clearestclaims, orprotectionagainstcertain danger."* Let no one who actually holds the office of trustee or executor suppose that he is safe from a suit, because the state of the affairs of his deceased ancestor or friend appears to be perfectly clear and satisfactory ; nor let him think that any determination on his part to act with extreme caution will protect him from being involved in the vortex of a Chancery suit, there to be harassed by years of anxiety and litiga- tion. The case of Urch against Walker, f which was decided in June last, and the case of Knatchbull against Fearnhead,J which was decided in 1837, are sufficient to show that even though an executor or * Miller, p. 88. f Mylne and Craig's Reports, iii. p. 702. I Ibid. p. 122. trustee may act with perfect integrity, and under the advice of his solicitor and counsel, he may yet be made personally liable, through the means of a Chancery suit, for the misconduct of another of which he was entirely ignorant ; that an executor may also be made personally liable, to a ruinous amount, for some technical breach of trust innocently committed by his testator, and that, perhaps, many years after such executor has disposed of the whole of his tes- tator's property, in ignorance of any such breach of trust having been committed, and even without having had the means of becoming acquainted with its commission* But notwithstanding this unaccountable apathy on the part of the bulk of those who are so mate- rially interested in the subject, the interest in it, which is now evinced by many intelligent members of the bar, and by the leading solicitors practising in the court, coupled with other circumstances, leads me to entertain a hope that the time may not far distant when a great and important change be forced upon the attention of the government the legislature. My aim and ambition are to Ip to prepare the way for such an event, and in the mean time to cause some remedy to be provided to meet the present emergency. i * I observe with pleasure that Mr. Freshfield has taken up the Court of Exchequer in the House of Commons. Lincoln 's Inn, May 16,1839. , LONDON : N AMI PALMER, SAVOY STREET. A 000025406 o