Imatges de pÓgina

no consideration for the claims of the les- to enfranchise, or, if he did not, he might see. He would suggest that provisions call on the lessor to buy up his interest. might be introduced into the measure He trusted that, if the Bill was referred to which would meet the objections in both a Select Committee, it would be considered cases, and remove all reasonable ground of how far it would be equitable, supposing complaint. the interest of money should continue to rise, to continue to calculate the interest as between the lessee and the lessor upon the basis of the 3 per cent tables.

EARL GRANVILLE said, the Government were not prepared to give any opinion on the points in question; but he was inclined to think they would be better considered by a Select Committee of their Lordships than they could be in Committee of the whole House.

THE BISHOP OF OXFORD was decidedly of opinion that the Bill should go before a Select Committee. Besides the points mentioned by his noble Friend, there was the seventh clause, which would give the Estates Commissioners the absolute power of prohibiting any ecclesiastical corporation from granting a site for a school, or indeed for any building. The Act which the present Bill proposed to amend strictly limited the application of the principal fund to improving the property of the corporation. It permitted the sale and exchange of property, but it limited the application of the money obtained by such sales and exchanges to the improvement of the property of the corporations. Now, the measure under their consideration would give the power of carrying over that money to the General Fund, instead of laying it out upon improvements. That was so manifest a variation from the original measure, that it was in his opinion a proposition which ought not to be passed into law in a Bill which professed to be simply an amend ing Act. Under these circumstances, he should move that the Bill be referred to a Select Committee.

THE EARL OF CHICHESTER was understood to say that the Commissioners intended to give the lessees for lives the benefit of seven years, as well as the tenants for fixed terms of years. He saw no great difference between the principle of the Acts, which was that the surplus should be made available for the purposes of the General Fund.

THE EARL OF DERBY thought such an arrangement would be fair and in accordance with the intentions of the Act.

After a few words from the Marquess of SALISBURY,

EARL FITZWILLIAM said, it was of importance in carrying out the Act of Parliament that both lessor and lessee should be dealt with on the same principle. By the Act the option was given to the lessee The Earl of Derby

EARL GRANVILLE assented to the proposition for referring the Bill to a Select Committee.

Order of the Day discharged; and Bill referred to a Select Committee.

DANGEROUS ANIMALS BILL. Order of the Day for the Second Reading read.

LORD LANESBOROUGH, in moving the second reading of the Bill, stated that it contained three clauses; the first gave the justices in the rural districts the power, which was already possessed by the magis trates in the metropolitan district, to order the constables to destroy dogs in a rabid state, or to issue directions for the muzzling or tying up of dogs in the hot wea ther; the second clause extended to the agricultural districts the operation of the Act for the suppression of dog-carts; and the third clause was intended to prevent dangerous stock being kept in fields or inclosures, where they were likely to do injury to persons passing through.

Moved, That the Bill be now read 2a.

THE EARL OF HARDWICKE said, that there was no doubt the employment of dogs in carts was attended with considerable inconvenience and often led to accidents; but on the other hand the House must not forget that there were from 16,000 to 18,000 of these carts in the district south of London alone; and supposing that each of these carts was owned only by a single individual, it was obvious that this was a very large part of the population to deprive of their bread by an Act of the Legislature. They should not forget that the owners of these carts were restrained from cruelty to their dogs by a vigilant police, to the observation of whom they were constantly exposed; and if not treated with cruelty he saw no reason why the dog should not be employed for draught, to which it was as well adapted as the horse. He strongly objected to loading the Statute-book with small Statutes of this description, which greatly fettered the liberty of various pursuits in life. In regard to the provision contained in this measure respecting horned

cattle, he thought the farmers would be | With regard to the third clause, no doubt greatly annoyed to find that according to many of their Lordships might very well this Bill they could not turn a bull calf out entertain objections to that. He was surinto the fields. prised, however, that the noble Lord who had introduced this Bill, being himself an Irishman, should have limited the operation of this Bill to England. On what principle was it that rabid dogs were to be shot in England and not in Ireland?

Amendment moved, to leave out "now" and insert "this day six months.'

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LORD LANESBOROUGH remarked, that the clause only referred to "furious" bulls.

LORD BERNERS said, that this Bill only proposed to give to the justices of the peace in the rural districts the power which the magistrates of the metropolitan districts had possessed for twenty-five years. He certainly thought that it was quite reasonable that this should be done. At present the magistrates in the rural districts had no power to order the destruction of dogs in a rabid state, which frequently bit a number of stock before they were destroyed. With respect to the suppression of dog-carts, there could be no doubt that these vehicles were the frequent causes of accidents. Nor did he think that their owners deserved the consideration of the House; they were generally the carriers of stolen goods, and were in the habit of going about from fair to fair with their dogs, which were so savage that no common constable would dare to approach them.

THE EARL OF CHICHESTER thought it was highly desirable to take measures to prevent dogs being used for the purposes of draught. Their employment in these little carts was often attended with serious accidents, and the men by whom they were owned were, generally speaking, amongst the worst class of the population. He believed that the use of dogs in this manner would not answer for the purposes of honest trade; and that the only way in which the proprietors of existing dog-carts made it pay was, by keeping such savage dogs that no one liked to meddle with them, and thus they were enabled to live at free quarters in the neighbourhoods through which they passed.

THE EARL OF WICKLOW deprecated the ridicule which the House seemed disposed to cast upon this measure. He certainly thought it was high time that the justices had power to order the destruction of rabid dogs. And with respect to the clause relating to dog-earts, it was at least worthy of serious consideration, for the House would recollect that the House of Commons had, in a former Session, passed a Bill for this purpose, which was only lost in that House by a very narrow majority.

THE EARL OF CARNARVON said, the subject was one not unworthy consideration. In the year 1838 a Committee of the House of Commons inquired into the subject, and it was proved before them by evidence that the practice of driving dogs in carts was not only a great nuisance and caused frequent accidents, but that it also had a tendency to produce madness. It had been said that the suppression of dogcarts would be a great injury to the poorer classes; but generally the men to whom they belonged were of the lowest and most degraded character, who, although professing to live by honest industry, really gained their livelihood by the worst means. The passing of a measure like this would be attended with great advantage by diminishing strolling vagrancy, and checking the system of petty depredations on the part of these men, from which the farmers at present suffered severely. The provisions of this Bill were already in operation in the metropolis, and he was therefore quite unable to understand on what principle they could refuse to apply them to the rest of the country, when it was the fact that as many accidents were caused by dog-carts in the country as in the town.

LORD REDESDALE opposed the Bill, thinking that, from the way in which it was framed, no good would result from its enactment. It was proposed that two or more credible witnesses were to go to a magistrate and state on oath that the mad dog was running about, and then they might lawfully pursue and kill it. All this time the mischief was being done. Again, if a rabid dog were running about for three days, every dog in that district was to be shut up, so that, if a meet were appointed to take place, all the hounds would have to be shut up, under penalties. The preamble of the Bill set forth that, "Whereas dogs have gone mad through being used in trucks. Now he (Lord Redesdale) had never heard of one dog going mad through any such cause; and, as to the alleged cruelty practised towards dogs in draught, he thought they did not see dogs overbur dened in the way in which asses and other

animals frequently were, and he believed there was less cruelty practised towards dogs in draught than towards any other animals. The whole of the legislation proposed in this Bill would not, he was of opinion, be productive of advantage.

On Question, that "now" stand part of the Motion, Resolved in the negative; and Bill to be read 2a on this day six months.


House in Committee (according to order).

man opposed to it, the verdict of the eleven should be taken as the verdict of the jury. When one man set himself against the rest of the jury, perhaps not upon solid grounds, perhaps for interested motives, perhaps because he was the friend of one of the parties, or, perhaps because he was bent upon carrying his point, they might suppose that the eleven persons opposed to him were likely to be right, and that the one man who was opposed to them was likely to be influenced by some improper motive. But he denied that when there were two dissentients the same reason applied, because the chances were that there was something in an objection which was entertained by two men out of twelve. They could hardly suppose that two persons would enter into a conspiracy to prevent a verdict being given by the other members of the jury; with these views, as the clause in the Bill had specified "ten or eleven," he would move to omit "ten or, so as to leave in the clause the word eleven, thereby making the verdict of eleven jurors decisive. There was another clause on which he proposed to take the opinion of the House, namely, the clause which had regard to dispensing with oaths. It appeared that the Common Law Commissioners could not agree as to whether oaths should be dispensed with altogether or not, and therefore they did not report one way or the other; but it was considered that if from conscientious motives a man-whether Quaker, Separatist, or of any other religious sect-alleged he could not take an oath, and the judge was of opinion that the objection was made in good faith, he should be at liberty to release him from the obligation. He had made up his mind to object to the clause in the Bill on this sub

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LORD ST. LEONARDS said, it was proposed by this Bill to give to a Judge of a court of common law the power to refer matters to arbitration, so as to save the expense of a trial. But it was generally supposed that if they wanted to visit a man with a great penalty, they should send him to arbitrators, who had not that sort of sanction that would give weight to their proceedings. They were forced to sit at whatever time would suit counsel, and it was very seldom the same hour and day would suit them and the arbitrators. Then the expense was enormous, and the result was generally unsatisfactory, though they endeavoured sometimes to avoid any very great disparagement of their award by giving something to each side. The proposed alteration was a very great one, and if adopted there should also be some such law as this-that the arbitrator appointed should at the end of a month report to the Judge that appointed him the progress he had made in the matter referred to him. By the proposed changes also they could despense with a jury, which had been sanctioned by time, and to which the people of the country were accustomed-the unani-ject. He was not prepared to say to what mity of the decision giving a weight to extent he should be ready to go if a meatheir decision which nothing else could do. sure on the subject of oaths were regularly When they came to dispose of a matter of and fairly brought before the House; for, fact, one set of witnesses might swear di- if ever there was a measure which required rectly opposite to what was sworn by an- to be distinctly brought before the Legislaother set of witnesses, and it was neces- ture, it was a measure with respect to dissary to have a tribunal, whose competence pensing with oaths. A man might have could not be questioned, to decide between a conscientious belief that it was wrong to them. But the most important point con- take an oath; but how was the Judge to tained in this Bill was the change now, for decide it; and he asked if any of his noble the first time, proposed in the law, which and learned Friends would like to be called required unanimity in the jury. He felt upon to decide it? This, as he had already extremely unwilling to alter the law in this stated to their Lordships, was, in his aprespect, but he gave way to this extent-prehension, one of the most important that he was willing that, if after a limited measures that had ever come before their period of deliberation, eleven of the jury Lordships; and, thinking it was the duty were of one opinion, and only the twelfth of some person, he ventured to take the

Lord Redesdale


duty upon himself of drawing the attention of the House and of the country to the very important alterations that were made by this proposition to pass on; there had been manifested out of doors a very considerable feeling in favour of what had been called the fusion of law and equity. The practice in America had been cited to them as an example. He could only say that having looked with great patience to everything that was brought forward with regard to this supposed fusion of law and equity in America (which came to this, that the same Judge sat in law and in equity, and now says, "I am in law," and now says, "I am in equity"), he thought there was nothing in the evidence that had been laid before the country which would induce him to accept it. They had an example much nearer home of blended law and equity-in Scotland. Now, he did not mean to reflect in any manner upon the Scotch Judges-for their learning and ability he had a most unfeigned respect-but it did so happen that it was impossible to sit in that House as he did, morning after morning, and day after day, without being struck with this -that the number of appeals from the Courts of Scotland exceeds in amount the appeals both from England and Ireland; the appeals from Ireland during this Session were only one in eleven for the appeals from Scotland. Was that owing to the blending of law and equity? He would not then discuss it, but merely call their Lordships' attention to the example he had given, from which they found that the blending of the two courts of law and equity did not lead to that satisfaction and certainty which were the essential elements of a satisfactory condition of law. There were, no doubt, many maxims of equity which might with propriety be adopted by a court of law, and might by the Legislature be imported into a court of law. This Bill afforded some instances of that, and very important ones. If a man should keep the chattel of another, the person whose property was detained might bring an action in a court of law against the holder of his property, but the party was not bound to restore the chattel of which he had possessed himself; and this Bill proposed to extend the power now vested in courts of equity to courts of law, and there was no reason that he was aware of why the law should not be so. Then came the question what equitable powers they might with propriety extend to courts of

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law. If there be a lost bond for example, the man who had lost it could not proceed at law in consequence of the loss; but he might proceed in equity, and having proved the loss, andg iven proper security, compel the man who had entered into the obligation to pay the amount. It was proposed by this Bill to give a court of law a like power, and he approved of the proposition. The great difference between law and equity was, that if a man broke his contract the remedy at law was simply by an action for damages, but the court of equity enforced the specific thing, and whatever the party had agreed to do, he must, by the order of that court, specifically perform. Thence had arisen the doctrine of specific performance, and, according to that doctrine, a party was not at liberty to withdraw from a contract and say he would pay damages. He must perform the specific thing he had agreed to perform. Beyond that, equity forced a discovery, but under peculiar rules and restrictions, in aid of an action. There was a popular instance of the powers respectively possessed by courts of law and equity in the case of a singer who, having covenanted that she would not perform anywhere but at the Opera House, entered into an engagement to sing at Covent Garden Theatre. The common law in that case could give nothing to Mr. Lumley but damages; but the court of equity, though it could not force her to sing at the Opera House, did this-it prevented her from singing anywhere else. He was of opinion that, before a change was made, they ought to remodel the courts of law, so as to give to them the same means as were possessed by courts of equity, through chief clerks and other officers to institute inquiries. The Bill proposed also to give greater equitable powers than existed in a court of equity-it enabled a court of law to compel a discovery both of documents and facts. It enabled a court of law to grant injunctions-and ex parte injunctions-to an extent that a court of equity did not possess; because a court of equity never granted an injunction ex parte except to prevent irreparable mischief, and on account of there not being time to call the parties before it. The Bill went on to give the powers of courts of equity in the form of a mandamus for the first time, and in this form it gave the courts of law for the first time the whole power of an equitable jurisdiction to enforce

specific performance. There had been saving of much time and expense, he did an extensive change in the Bill in this not say that they might not make a set of respect. The Common Law Commis- rules to govern both law and equity; but sioners particularly guarded themselves they must give to each court a fitting maso that the mandamus should be confined chinery for the double jurisdiction; and if to cases in which à mandamus might now they gave to the courts of law and of issue at law, and they never intended, as equity the same rules, then they would this Bill proposed, to give the courts of know what they were at. He could underlaw a power generally to compel any man to stand a great country grappling with a perform a duty which he ought to perform. great scheme like that, and framing rules The Bill again said that whenever a man to govern both law and equity, and makhad an action brought against him he might ing those rules binding on all the courts plead an equitable defence-that was to over the whole country; but he could not say, he might put upon the record, in the understand the giving to the courts of law, shape of an equitable defence, that although with their present and ancient jurisdiction, the plaintiff was entitled by law to recover, which was diametrically opposed to an yet in equity he was not so entitled. It equity jurisdiction, and then leaving them also, and necessarily so, gave to the plain- to do, what?-why, to decide upon equittiff an equitable replication. Why, what able grounds against their own rule the did all this come to but a regular suit in rule of law being that a man was to recover, Chancery? In a word, the Bill proposed the rule of equity being that he was not to to authorise the courts of common law to recover. Now, he did not say that in time deal with purely equitable suits, demanding they might not work out such a system; greatly increased equitable knowledge on but there must be a new machinery set up, the part of the common law bar, which and they were entering upon a new career almost ostentatiously repudiated all know- without, as he ventured to think, sufficient ledge of equity, and on the part of common inquiry and deliberation, and seeking to do law Judges who, from their whole train- on a small scale and in an indirect manner ing, necessarily laboured under the same what ought to be done, if done at all, upon defect. The result must be a conflict of a large scale, and openly and directly. By authorities and irremediable confusion, in- this measure he believed there would be a stead of that certainty and fixity of deci- clashing jurisdiction given for the first time sion that ought to exist. As the Bill was to the courts of law. He must again reoriginally brought in, the provision as to peat that their Lordships had never had a equitable defence was confined to the case Bill before them of greater importance of an undoubted defence in equity, and the than this; and that was his excuse for equitable replication was in like manner occupying so much of their time. Having confined to an undoubted replication of stated his opinion, it was not his intention equity. Now, as the law of this country to offer any opposition to the general mea at present stood, if A sold an estate to B, sure; and he only wished that his misgiv and it was agreed between them that the ings with regard to its working might not title should be produced on the 10th of be fulfilled by the event. The noble and May, and that the purchase should be com- learned Lord concluded by moving to omit pleted on the 11th of the same month, and the clause dispensing with oaths. if the man who sold had not the title ready by the day named, he was liable to an action for damages; whilst the buyer, if he did not perform his contract by the day appointed, was also liable to damages, time being of the essence of the contract. But in equity, on the other hand, an extension of time was in proper cases allowed on both sides, till the completion of the contract. Now this Bill, by the alterations it proposed, would create the greatest difficulties and confusion. If Parliament were at once to determine that one and the same court should decide both law and equity, he did not say that it might not lead to the Lord St. Leonards

THE LORD CHANCELLOR observed that, as the noble and learned Lord, whose opinion on such a question naturally carried with it great weight, had objected to some five or six provisions of the Bill, which contained rather more than 100 clauses, although the regular course would have been to discuss the subjects of the sepa rate clauses as they were arrived at in Committee, it would, perhaps, be most convenient if he (the Lord Chancellor) at once noticed the objections of the noble and learned Lord, and stated his reasons for thinking that they were entirely unfounded. The importance of the mea

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