The Lord Chancellor, in moving the second reading of the Bill for ensuring the payment of Simple Contract Debts, observed, that its object was, to do away with the anomaly which existed in the law of debtor and creditor in this country, by compelling persons to do what every honest man does without compulsion—namely, to subject his real estates to his just and lawful debts. As the law stood at present, so long as the party lives, there was no distinction between simple contract debts, and other debts; but after the death of the contractor of simple contract debts, at present 105 his estates were no longer liable. The consequence of this was, that persons might do what had not unfrequently been done—might obtain possession of considerable funds upon note of hand, as a simple contract debt only, and having invested those very funds in the purchase of real property, if the party who had obtained those funds died before judgment had been obtained against him, and left the real estate, the fruit of this fraudulent transaction, to an heir or devisee, the creditor was not, according to the present state of the law, able to recover one farthing. Many thousands of pounds had been obtained in this way, and, in his opinion, the opprobrium which such a state of things was calculated to bring upon the whole system of our jurisprudence, must far outweigh any advantages which might be supposed likely to arise from it. Nor was the inconvenience entirely confined to those who actually had a fraudulent intention in contracting such debts, but it frequently happened that parties who really intended to satisfy their creditors to the utmost, from inadvertence neglected to make such a provision in their wills as would suffice to carry their intention into effect; in which case also the simple contract creditors would have no right to make any claim upon the owners of estates purchased with their funds. The subject having been at various times fully discussed, he thought it unnecessary further to enlarge upon the subject at present. He should move the second reading of the Bill, but with the intention, in consequence of the absence of his noble and learned friend, the Lord High Chancellor of Ireland, of confining it for the present to this country, though he rather thought the Bill formerly brought in was not confined to this part of the kingdom. As to Scotland, where no law exonerating real estates as in England existed, there was no occasion for including it in the provisions of the Bill. This course with respect to Ireland was rendered more necessary, because it had been thought advisable to include lands held by copyhold, by customary and other tenures, as well as freeholds under the provisions of the Bill.
§ Lord Wynfordsaid, he would not oppose the Bill, but announced his intention of moving, as an Amendment, in the Committee to limit the enactments of the Bill to such debts as were acknowledged by a note in writing.
The Lord Chancellorobserved, that his noble and learned friend had privately 106 communicated to him the substance of his Amendment. Much, however, would depend upon the manner in which his noble and learned friend should frame the clause; for, according to his present explanations, it would have the effect of taking a great many cases of breach of trust out of the operation of the Act. In the case of an infant, for instance, difficulties might occur. For his own part, he was more inclined to extend than to contract the operation of the Statute of Frauds.
The Earl of Wicklowstated his surprise at the objections to extending the Act to Ireland, considering the ample discussion which it was admitted had already taken place on the subject. He regretted that, in the case of a law intended for the benefit of society, it should be thought necessary to make an exclusion in the case of Ireland.
The Lord Chancellorsaid, he had explained why he thought it advisable to postpone the consideration of the question as it regarded Ireland. It was advisable to consult his noble and learned friend the Lord High Chancellor of Ireland, whether that country was not placed in a different situation from England with respect to copyholders. He had much rather, if it were possible, that it should be extended to Ireland at once.
The Earl of Wicklowthought the whole Bill might be postponed for one week. He had understood that there were few or no copyholders in Ireland.
The Lord Chancellorobserved, that the Bill was now general, and the leaving out of Ireland could be done in the Committee upon the Bill, or on bringing up of the Report. The Committee might be deferred till the time desired by the noble Lord.
§ Bill read a second time.