COUNTY COURTS—EXPLANATION.— BANKRUPTCY LAW (SCOTLAND). (Hansard, 15 March 1853)

LORD BROUGHAM

said, he hoped the House would not take alarm as if he was about to detain it at any length, but there were some papers to be moved for, which he should not have an opportunity of moving for unless he did it now—the same returns with respect to the Superior Courts which had been already furnished with respect to the County Courts; and he wished to take the opportunity of setting right a mistake with regard to these courts. A fews nights ago he contrasted the amount of the sums recovered by the County Courts 195 in a year—600,000l. and odd—with the enormous amount of the taxes upon the proceedings in those courts levied in the shape of fees—no less than 272,000.; but it had been most properly suggested to him by some of the learned Judges of those courts, that the 600,000l.—and the real sum was 800,000l., the return being faulty in that respect—was by no means the whole amount recovered. There was, perhaps, 100,000l. paid into court; and the amount paid by parties settling before the proceedings went into court was probably 300,000l. more, making 1,200,000l. —the result of this most beneficial system of local judicature. It was with that amount, and not 600,000l., that we must compare this large sum extorted from the suitor in law taxes. It was in amount between one-fourth and one-fifth of the whole money recovered; but even if we take the whole money sued for—1,600,000l., it was 17 per cent of that sum. This was an evil which we had the means of remedying, and ought to redress without delay; and, seeing that even with this the advantage to the suitors and the community was prodigious from this admirable system of local judicature, he could not help hoping, that while it would be improved in England, it would be extended to Scotland. He knew that the existing system could not be suddenly altered—could not even gradually be entirely changed, and that there were difficulties in that direction almost insuperable; but he would fain hope that as much as possible might be done, extending to Scotland, without the complete alteration of the Sheriff Courts—without a sweeping and radical alteration, the real substantial benefits of the English institution—a local judicature to the amount of 50l., parol and not written proceedings, and no appeal from the local resident Judge to the non-resident Judge—though he might nominally be local, be called local, which he was not —but an appeal confined, as in England, to error in law, and made to the Supreme Court. If that were given to Scotland, and reserving the power of afterwards dealing more or less extensively with whatever other defects might be in the system, a most prodigious advantage would be gained, and the existing agitation against the whole system as at present established would be put an end to in the most satisfactory manner. It was with great satisfaction that he had heard that the Government had resolved to issue a Commission to inquire into the whole of that great subject 196 —the assimilation of the mercantile law in the different parts of the United Kingdom, including the assimilation of the procedure, and, among other branches, the most important of the whole—the assimilation, to a certain degree at least, and in some manner, of the law of bankruptcy and insolvency; he would not say, by applying the English system entirely to Scotland, or by substituting the Scotch system for the English, but in all probability by coming to some third system better than either, compounded of the best parts of both. He had no doubt the inquiries about to be instituted would result in substantially effecting that purpose. The great mercantile body in the provinces, both of England and Scotland, and especially in the great City of London itself, felt deeply anxious upon this subject; and he was about to present to the House a Bill which he considered as going in the right direction. If the English system was to be applied to Scotland—that of administering bankruptcy in a court and by Judges, that of giving the inestimable blessing of official assignees, that of giving the equally solid advantage in a moral, legal, and commercial point of view, of three classes of certificates—if, upon inquiry, it should be found fit that that system be extended, and the difficulties in the way of extending it should be found capable of being got over, in whole or in part, so that substantially (though not wholly) the benefits of it might be extended, the Bill he was about to lay upon the table would be found to work out those principles, and to go no further. He would not go into the details of it, nor would he pledge himself that upon inquiry it might not be found that a lesser change would be more advisable; because in applying our new bankrupt law to Scotland, we should be doing a very different thing from that which we did when we established it here, where we had a system something of the same kind to work upon and improve upon, and the difficulties in the way of the introduction of our present system into Scotland might very possibly, upon inquiry, be considered insuperable. He was bound to state this great difference between the two cases. When he brought forward in 1831 the new bankruptcy measure, he knew that he had a system of judicature already established, which only required to be improved. Bankruptcy was admitted by the Commissioners, that is, by a court: this court was new modelled, and the most 197 important addition was made of official assignees. In 1849 the almost equally valuable improvement of class certificates was added. But we had in Scotland no such system established to remodel, or on which to graft these improvements. Therefore it was that he spoke with diffidence upon the question, whether or not the result of the inquiry about to be instituted would lead to such an alteration. But if it should be considered that it would be beneficial and safe to apply the principles of the English system well worked out, then that great mecantile body whom he might humbly venture to say upon this occasion he represented, would have rendered great service by the steps which they had taken for urging upon our attention the details as well as the principles of measures which might have the effect they desired. He had now to present a Bill to improve the Administration of Bankruptcy and Insolvency in Scotland.