The Solicitor-Generalrose to make his promised motion, on the subject of Simple Contract Debts. The injustice of the law in this case was so glaring, and the remedy for that injustice was so obvious, that he should feel it unnecessary to do more than barely to state the object of his motion, were he not aware that a similar measure had formerly been unsuccessfully proposed. By the law as it now stood, a man might contract debts to any amount, not evidenced by bond or other legal instrument; and, dying with sufficient property amply to satisfy those demands, his estate would pass to his heir at law, and his creditor would remain unpaid; or were the owner of such property, not before his death, to make a testamentary assignment, however capricious, to a stranger in blood, that stranger might, if he chose, look with indifference and security on the ruin of the creditors. It was very surprising that this evil should have been so long allowed to exist; more especially when the extent of commerce in this country was considered, and when it was recollected, that all debts on negociable security were merely simple contract debts. Cases had occurred in which persons engaged in expensive commercial speculations, and foreseeing the near and unavoidable approach of great embarrassments, have thought it policy to increase to a larger amount these simple contract debts, and having thus secured property to their heirs, have put a period to their existence, and occasioned an immense loss to their creditors. That an heir should be permitted to enjoy property, in despight of just creditors of that property, although on the faith of that very property credit had been given, was a law peculiar to this country. How did it originate? To resolve this question, it would be necessary to refer to our history; to those feudal times, when every proprietor held his land by military tenure, which rendered alienation of property inadmissible; because, to alienate property would have been tantamount to the desertion of the military standard. Subsequently the usage was less rigorous, and the tenant was allowed, in some degree, to alienate his property. In the 13th year of the reign of Edward I. 562 he was allowed to alienate half his landed property; and a few years afterwards a law was passed, by which he was permitted to alienate the whole of it. Still, however, the law which secured landed property from being subject to the payment of simple contract debts remained. It had survived the season of its original existence five hundred years! It was astonishing that the law should be so lax in one respect, and so rigid in another, closely analogous. If a man in trade gave credit to a man of landed property, and that man of landed property died without making provision for the payment of his debt, the tradesman had no remedy: but the law strictly enforced the payment of the tradesman's debts; his little stock was swept away; his person exposed to the contagion of a jail, in which he was doomed to remain all his days, unless liberated by one of those accidental interpositions of the legislature, annihilating all engagements, and cancelling every contract, to which they had occasionally been driven for the purpose of relieving the capacious prisons of the country from their too numerous inhabitants. He should be sorry if what he had said, should be misconstrued into any reproach of those heirs who might have allowed debts, thus contracted, to remain unsatisfied; for he knew how easy those sacrifices were considered, which those who considered them as easy were not called upon themselves to make. These heirs had a right to urge the law as their guide, and if reproach rested any where, it was on the legislature, which had so long suffered the evil. With regard to the remedy, it had at first occurred to him, that it would be expedient to place contract creditors precisely in the same situation as special creditors, and to give them precisely the same means of recovery. Some difficulties however appearing, it now seemed to him preferable, simply to declare, that freehold estates should be assets for the payment of simple contract debts. Courts of equity had endeavoured to apply a remedy to the evil of which he complained, and had frequently had the boldness to order what was termed marshalling of assets: but this remedy was inadequate. He was fully aware, that when any person proposed to alter along-established usage, it was incumbent on him to declare the advantages of that usage, as well as the disadvantages, otherwise the legislature mould not be enabled fairly to 563 estimate the necessity of the change. It might be thought that he had not done this. The reason was, that on the closest examination he could not find a single advantage to compensate, or even to alleviate the injustice of the custom which he had described. The law, as it there stood, appeared to him to be pure, unmixed evil. He therefore moved for leave to bring in a bill to make the freehold estates of persons dying indebted, assets for the payment of simple contract debts.
Mr. C. Wynneexpressed his perfect approbation of the object which the learned gent. had in view. He hoped, however, that he would not stop here, but that he would employ the great powers of his mind and his extensive knowledge of the law, in applying a remedy for the creditors of the living possessors of estates, as well as of the dead; he meant by giving additional effect to the writ of elegit.— Leave to bring in the bill was then granted.