§ Mr. J. P. Grant
said, that the bill had been brought in without due consideration. Its preamble recited that to be true which was manifestly false; and declared that to be law which the decision of the House of Lords, in a recent case, had declared not to be law. If this bill should pass, it would hold up this House to absolute ridicule. The bill set forth, that, by the law of Scotland, partnerships, or commercial associations of individuals, might sue and be sued in respect of debts, bonds, &c.: but, so far from this being the case, decisions of the courts of session in Scotland had repeatedly held, that such partnerships could neither sue nor be sued.
The Lord Advocate
contended, that, by the law of Scotland, as it had existed for upwards of a hundred years, partnerships might sue and be sued. Authority, too, was given by the same law to record bills of exchange, in further extension of the principle that partnerships might sue and be sued. The records of parliament would show innumerable instances of appeals carried on in the names of such joint partnerships. He would further observe, that this was not a declaratory but a prospective bill. The measure was one of the utmost importance to the commercial interests of Scotland; and he might say, that they would be excessively alarmed if they heard that the question had been made matter of doubt.
§ Mr. T. Wilson
supported the bill, and was so convinced of its beneficial tendency, that he should be glad to see a similar measure introduced into our own commercial law.
§ Mr. Scarlett
would be sorry to see any such thing introduced into the law of England. It would lead in its operation to a great deal of fraud; for if all partners in a partnership were able to sue or to be sued, what would be the condition of a defendant, who having been proceeded against by all of them, should have judgment in his favour? What would he do, in very many cases, for his costs? How would he be able to recover them? It was to be hoped, therefore, that no such measure would be engrafted upon the law of England. As to the bill itself, it was clearly declaratory.
said, that the learned lord had intimated, that in Scotland the bill was absolutely necessary; a learned friend of his had just declared, that he should be 1280 sorry to have it introduced into the law of England, because it would be productive of fraud; and that observation had been cheered by the Attorney-general. Now if, as he himself believed, this would be a beneficial measure for one part of the empire, why would it not be also for another? This was another instance in which lawyers had shown that they were not the best judges of what laws would be most beneficial for merchants. In Ireland an old law existed, authorizing individuals to form partnerships with a limited responsibility; but in England the matter remained in a state of doubt and difficulty, which he had no doubt the lawyers considered to be the perfection of all law; because hon. and learned gentlemen had never taken any objection to it. Against the present bill, however, he was disposed to vote, seeing that it did not apply to all parts of the united kingdom.
The Attorney General
said, it had been considered by those who introduced this bill, that they were proceeding upon what was law, and had been considered to be law in Scotland for a hundred years and upwards. At the suggestion of some commercial men, he himself had lately entertained some thoughts of proposing a similar measure in respect to England; but when he came to look more carefully at its necessary operation in this country, and to consider how wide a difference the very existence of such a court as the court of Chancery made between the two kingdoms in respect of the expediency of such a law (which court Scotland did not possess), he was convinced that it was not advisable to introduce any such measure into the law of England. The present bill did not establish any new principle; but was only brought in for the purpose of removing any doubts about that which was already law in Scotland.
The bill was read a third time and passed.