HC Deb 26 May 1820 vol 1 cc605-12
Lord Althorp

proceeded to describe the principal provisions of the Insolvent Debtors' bill, the seond reading of which he was about to move. In consequence of what had passed with regard to this measure upon a former evening, he felt it necessary to preface his motion with a few observations. It was now universally admitted among candid and considerate men, that the imprisonment of a debtor should not be continued at the will of a creditor, in other words, that a creditor should net have the power of imprisoning his debtor for such a period as could not possibly do himself any service, while it must be ruinous and tormenting to the debtor. Upon this indisputable principle, the late law for the relief of insolvent debtors was founded. That law was, however, deemed by some persons to be so defective, that a number of petitions, complaining of its operation, were presented to the House within the last parliament, and these petitions were referred to the consideration of a committee, who found that certain of their allegations were not without grounds, but it was also found that many of the complaints of the petitioners were as applicable to the old law as to that against which they were especially directed. The principal objection to the late law was, that the creditors had no power to inquire into the effects of the debtor at the time of his arrest, or until the period of his application for a final discharge. This it was proposed to remedy in the bill before the House. But as it was objected to the bill brought forward in the course of the last session, that a debtor should not be peremptorily required to deliver up, on the petition or demand of a certain proportion of his creditors, a schedule of his effects, within fourteen days after his arrest, that period being deemed too short, it was proposed, in the present bill, that if such a demand should be made by the creditors within those fourteen days, the debtor should be allowed fourteen days time to comply with that demand after the petition containing it was presented. The debtor was, however, in the mean time, liable to be called upon for the surrender of his property into the hands of an assignee of the court. Another complaint preferred against the late law was, that the agents who practiced in the insolvent debtors' court were not attorneys, or in a due degree under the control of the court, and to remedy this it was proposed that none but regularly admitted attorneys should be allowed to practise. But against this proposition many objections were urged, and among others it was stated, that if none but regularly admitted attorneys were allowed to practise, the whole of the business was likely to be thrown into the hands of the lowest class of attorneys, from whose practices more evil was apprehended than from any description of agents hitherto connected with this court. Hence it was deemed expedient to propose in the pre- sent bill, that the court should have the power of appointing agents for the insolvents, whether attorneys or not, according to its discretion, while it should be open to the creditors to appoint their own agents or attorneys. The next important provision in this bill was, that of enabling creditors to compel debtors to take advantage of the act, and to surrender their property after they should have been in custody for a period of nine months. It was of course meant to include in this provision, that if any surplus property should remain after his debts were discharged, such surplus should be delivered over to the debtor, according to the principle of the old law. With regard to the property acquired by debtors after their discharge, it was found by the inquiries of the committee before alluded to, that notwithstanding the provision of the law upon the subject, very little if any such property had been found available for the benefit of the creditors. One of the new provisions, therefore, was, to enact some security for the creditors upon this subject, by investing the court with the power of prohibiting any debts found due to the debtor after his discharge from being paid to him; and also to intercept any legacy which might be bequeathed to him before it reached his hands; the funds arising from such sources to be placed in the hands of the assignee of the debtor, for the satisfaction of the creditors.—Now, as to the constitution of the court: according to the late law, only one judge presided over its proceedings, and that arrangement, it was proposed by the bill of last session, still to continue, with the addition of two examiners. But upon farther consideration, and especially in consequence of the multiplicity of business to be done, previous to the final decision upon the case of petitioning debtors, that business being of such a nature as to require great attention and acute discrimination, it was thought desirable to have three judges appointed. If there were only one judge, it must be obvious that in case of his removal or sudden death, it might be very difficult, if not impracticable, at once to find a successor duly qualified to conduct the affairs of such a court; and the delay, with the inconveniences of a change of system, perhaps, would be productive of serious injury to the debtors.

Mr. Macdonald

rose, not to oppose the motion, but to make a few remarks upon the proposition with which his noble friend had concluded. With the proposition of appointing three judges id the court under consideration, he could by no means agree. He objected to such an appointment upon the ground of the increased expense which it must occasion, and any addition to the public expense was peculiarly objectionable at a period like the present. But the ground of necessity alleged for this new appointment was, he must take leave to say, not at all of an adequate nature. In his view, indeed, the additional or what was termed the previous business of this court, might be done in a more effectual way, by the two examiners which were proposed on a former occasion, to inquire into each case, than by the two new judges whom the noble lord now recommended. But upon what ground did the noble lord think it necessary to propose three judges, while he thought one judge sufficient in the month of December last? The business of the insolvent court could not surely require more previous inquiry than that of any of our courts of equity, and in those courts the previous business was all done by officers delegated by each court to inquire and report, but not to adjudge upon each case respectively. Why, then, should not the same principle be applied to the insolvent debtors court, that was found to operate with such effect in the other courts of justice? The expense of the new appointments was, he repeated, a considerable objection to his noble friend's plan—more particularly, as any previous business which the two new judges might have to discharge, and for which, no doubt, it was meant to grant them settled salaries, might be quite as well done by examiners, for a moderate fee upon each case. What he had said on the discussion of the motion, with respect to the appointing the vice-chancellor he could not help adverting to upon the present occasion, namely, that the public should not be encumbered with the expense arising out of the appointment of any new judge, while there were such anomalies as the Welch judges, who were comparatively unemployed. Here, he observed, the public might find a fund of judges, who could be used in aid of any of the ordinary tribunals in Westminster-hall, if such aid were required, or to discharge the duties of any new judicial office that might be deemed necessary. These judges could find ample leisure from the performance of their duty in Wales to attend to any such objects. Should, then, any additional judges be deemed necessary for the business of the Insolvent Debtors court, he hoped that it would be determined to draw upon this fund of judges, rather than to encumber the country with the expense of any new appointments. His noble friend had observed that it was necessary to have more than one judge in the court alluded to, lest upon his death there should be any delay or difficulty in finding a person competent to succeed. But how could such difficulty be apprehended, as an adequate successor could be readily selected from among the practising barristers in this court, and he must suppose that a successor to such an office was most likely to be taken from that body. Such certainly appeared to be the more eligible course. His noble friend's apprehension, then, upon this ground furnished by no means a satisfactory reason for his proposition. But his noble friend's apprehension of the inconvenience that might result to a court where only one judge presided, in case of that judge's death, because another might not be readily found to take his place, would seem to call for the appointment of other new judges as well as those at present proposed; for it would be recollected that there was only one judge in the court of chancery, as well as in the vice chancellor's and the Roll's court. If more sufficient reasons were not assigned for his noble friend's proposition than he had yet heard, he should feel it his duty to move an amendment in the committee upon this bill, that instead of three judges, there should be only one judge, with two examiners appointed in the court under consideration.

Mr. Bright

thought that some means should be devised to make a distinction, in the operation of the measure before the House, between the case of the honest unfortunate and that of the fraudulent debtor; for it was obviously unjust that the same measure of punishment should be inflicted alike upon all debtors before they could avail themselves of the proposed law. Some scale of imprisonment then, or some criterion of distinction, ought to be established. The cases of fraud and of suffering disclosed before the committee upon this subject forcibly called for such an arrangement. If an accusation of fraud were made by any one creditor, by the practice of the Insolvent Debtors court the accused was allowed to compound with that accuser, while he was released with regard to the claims of his other creditors. Of this practice he very much disapproveed, thinking that whenever any accusation of fraud was proved, the fraudulent debtor should be remanded for the usual period, upon all the claims preferred against him; for this law should in no case be allowed to shelter the fraudulent debtor from condign punishment. Some provisions should also be made in this bill to facilitate the recovery of property acquired by the debtor after being person all discharged from the claims of his creditors. He concurred with the noble lord in thinking that three judges were better than one for a court of this nature, as cases of great difficulty and troublesome investigation were so likely to be brought before it, and therefore he thought judges with settled salaries, would answer much better than examiners with occasional allowances, as these allowances would be too apt to tempt such officers to an unnecessary prolongation of their inquiries. There was another provision which he would take the liberty of suggesting, namely, that in any case in which a judge might think it necessary, he should be empowered to have a jury called in to assist his inquiries. For in such cases of complicated fraud as were likely to come before this court, it was most desirable that a judge should be at liberty to appeal for aid to that noble institution of British jurisprudence, the concentrated judgment of a jury. The hon. gentleman concluded with observing that he could see no reason why persons confined for Crown debts should be exempted from the benevolent operation of this bill, or that any distinction should be drawn between the Crown and any other creditors of an imprisoned debtor. It ought, at least in his judgment, to be provided, that Crown prisoners should be allowed to appeal to the court of King's-bench, which court should be empowered to commute the claim, or to discharge any prisoner, where it saw due cause for clemency.

Mr. Littleton

bore testimony to the excellent conduct of the noble mover, throughout the whole of the investigations and discussions which had taken place upon this question. That conduct was, indeed, the subject of praise in every circle where he heard the question alluded to. He therefore hoped the noble lord would follow his own views upon the mea- sure before the House, being convinced that this was the course most likely to meet the general approbation of the country.

Lord Althorp

thanked the hon. gentleman for the compliment which he had thought proper to bestow upon his labours; but he begged it to be understood that whatever he had been enabled to do was owing to the assistance of the very intelligent committee with which he had had the honour to co-operate. He indeed went into that committee comparatively unacquainted with the subject, but he found himself enlightened in the progress of the inquiry, both as to principles and details, by the information and judgment of his able colleagues. He agreed entirely with the hon. member for Bristol, that Crown debtors ought not to be exempted from the operation of the proposed law. But when he mentioned his wish upon the subject in the committee, he found the attorney-general's objections were such that he was afraid of pressing the proposition in that House, lest he should hazard the fate of the bill. With regard to the hon. member's suggestion to authorise the appointment of a jury in certain cases, it was to be recollected that a jury could not be impanelled without expense, and that the petitioners to the Insolvent Debtors' court were generally mere paupers, who had not the means of defraying any expense. Again, it might be apprehended, that if a judge of this court were allowed to call in the aid of a jury, he might feel too much disposed to throw the responsibility, in certain cases, from his own shoulders. Besides, it was to be remembered, that the court alluded to was appointed not so much to, try matters of fact as to decide upon cases or equity. On these grounds he found the objections to the impanelling of a jury in this court so very strong, that he could not persuade himself to make the proposition, notwithstanding his reverence for that noble institution the trial by jury. The appointment of three judges he had been induced to propose from a variety of reasons which to his mind were quite satisfactory, and among others from the experience of the commissioners in bankrupt cases, which cases were so very analogous to those usually brought under the consideration of the Insolvent Debtors' court. When, indeed, the advantages likely to result from the proposed appointments were taken into consideration, be could not suppose that the amount of the salaries annexed to those appointments, or any expense of that nature could at all weigh with the House against the attainment of such advantages.

The bill was then read a second time.