Mr.Peelrose and said:—Mr. Speaker; I had, yesterday, the satisfaction of performing the last act which was necessary to give effect, so far as the Houses of parliament are concerned, to the bills introduced by me, which had for their object the amendment and consolidation of the law relative to offences against property. Having concluded my labours with respect to those bills, I avail myself of the first opportunity of calling the attention of the House to another subject, connected with our domestic jurisprudence—of minor interest, 1351 perhaps, but still of very great importance: the state of the law with respect to the Recovery of Small Debts.
This subject was originally undertaken by the noble lord the member for Northampton (lord Althorp). It was at his instance that a committee was appointed; through his perseverance that those inquiries were instituted, which established a fact not very creditable to the law of England—that there exists no remedy of which any prudent man will avail himself for the recovery of small debts. I use the words "small debts" in deference to the prevailing use of those words; but we ought never to forget, that the terms large and small," as applied to debts, are relative terms; that the real magnitude of a debt, or any other pecuniary transaction, depends upon the pecuniary means of him who is a party to it; that the amount of debt, which may be scarcely discernible by the eye of Mr. Rothschild, is no trifling object in the eye of him whose whole capital does not exceed twenty pounds.
To close the avenues of justice, as to the recovery of debts to all those classes of society who subsist by labour, or by the retail of commodities, and who are compelled by the habits of society, to give credit to the parties with whom they have dealings, affords a just ground for complaint, and is a real grievance, for which a remedy must be devised.
I presume that it is hardly necessary to adduce proofs, that the existing state of the law with respect to the recovery of small debts is very imperfect. I speak of the law as it applies to the country generally, and except, of course, those special acts of the legislature, which have, by the establishment of courts of conscience, and courts of request, given, in large towns and some few other places, local relief.
The court to which, in ordinary cases, appeal must be made for the recovery of debts below forty shillings is the county court. Its jurisdiction is not expressly limited to debts below the amount of forty shillings, but it may be considered to be so limited practically; because, if the amount of the debt for which a proceeding is instituted in the county court exceeds forty shillings, the suit is removable, at the will of the defendant, into the superior courts.
By the common law, the suitors are the judges of the county court, and the sheriff is only a ministerial officer; but, according 1352 to the existing usage, for all practical purposes, the sheriff or his deputy is the judge, and the suitors act as jurors.
We find, then, in existence, at present, a court of very ancient institution, familiar therefore to the people; founded on good principles and of known, and defined powers and constitution. It appears to me to be a wise course to retain and to improve this institution; to enlarge the sphere of its operation, and to infuse into it new energy and vigour, rather than to supersede it by the establishment of a novel jurisdiction, resting on no foundation of antiquity, with no prescription to plead in its favour, and in the constitution of which, in every step, an experiment of doubtful issue must be made.
The complaint against the county court it not that it is defective in principle, but that it gives no effectual redress on account of the smallness of the sums which are alone recoverable in it, and still more on account of the expense of the proceedings, as compared with the amount of the debt. I propose, therefore, in the first instance, to enlarge the sum for which an action for debt can be maintained in the county court: to raise it from forty shillings to ten pounds. If regard be had to the decrease in the value of money, ten pounds is, probably, not a greater sum now than forty shillings was at the time that the power of the court was limited to debts of that amount. If upon trial it shall appear that the court gives an effectual remedy in the case of debts below the amount of ten pounds, and that justice within these limits is administered with general satisfaction to the people, nothing will be more easy than to extend the power of the court, and enlarge its jurisdiction to the amount of fifteen or twenty pounds.
The great source of complaint is in the expense and unnecessary complexity and length of the proceedings. An attempt to recover a debt of forty shillings in the county court, will, at present, if the action be defended, entail an expense varying in amount from about seven to fifteen pounds. If there be no defence, no obstruction to the immediate decision of the court, the expense will in very few, if any cases, fall short of three or four pounds. The proceedings are nearly equal in length, and require quite as much of technical nicety, as the proceedings in the superior courts, where the sum under litigation may be of an indefinitely greater amount. 1353 The bill which I shall introduce, will confine the formal part of the proceedings to which a plaintiff must resort previously to the hearing of the cause, to plaint and summons.
There will no longer be any necessity for taking out the writ, which is called, technically, the Writ of Justices; without which writ, as the law at present stands, the county court can take cognizance of no debt above 40s
The whole of the proceedings will be so simple, that any man who can read and write may insure the hearing of his action without professional assistance.
The plaintiff will be required to do nothing more than to enter in the office of the sheriff a plaint, in writing, containing his name and place of abode, the name and place of abode of the defendant, the amount of the demand, the cause why, and the time when, such demand occurred. A summons will then be issued by the sheriff or his deputy, calling upon the defendant, to appear, and giving due notice of the time and place at which he will be called upon to answer the plaint.
As I before observed, all the formal proceedings that are requisite may be taken by the plaintiff himself, without the aid of an attorney.
At the trial, I do not propose by positive enactment to exclude professional assistance; but I propose that no fee shall be allowed to barristers, and that the fee payable to an attorney for his services in court be limited, in any one cause, to the sum of 10s
With respect to the constitution of the county court, the bill will make very slight alteration in it. General usage has so far modified the original institution, that, at present, for all practical purposes, the sheriff is the judge, the suitors are the jury. And I propose that they shall still continue to act respectively in those capacities.
It may be desirable, in order that attendance on the service of the court may not be too burthensome, to qualify all persons who are liable by the jury bill to serve on petty juries at Nisi Prius, to serve as jurors in the county court. A smaller number than twelve will be amply sufficient to return a verdict; and the bill, therefore, as at present drawn, makes no other provision with respect to the number of jurors, than that it shall not consist of less than five. 1354 The great object of the bill being to ensure speedy decisions, with little trouble and at little expense, I propose, not to give the right of challenging jurors, and to give no appeal from the decision of the court. The sheriff or his deputy, on any just exception being made to a juror, will no doubt set such juror aside; and in order to remedy the evil which might, in some occasional instances, result from the total want of a power to set aside a verdict founded on false testimony, or in mistake, the bill will give to the sheriff the discretionary power to order a new trial, provided that the order be given before process of execution shall have issued. I consider it infinitely better for the interests of the public generally, and more conducive to the administration of justice properly understood, that, in matters of this kind, there should be a speedy and final award, even with the risk of an occasional error, rather than that there should be protracted litigation; which, although it may end ultimately in a just judgment, according to law, consumes in its progress much more than the value of the sum for the recovery of which the litigation took place. Suppose one verdict in fifty to be erroneous, the whole amount of the injury cannot exceed 10l. Is it not better to ensure justice at this expense to forty-nine out of the fifty plaintiffs, rather than to debar the fifty of any remedy at all, through the terror of expensive proceedings and vexatious appeals?
It is no doubt true, that although the sum to which the jurisdiction of the court is limited is small in amount, an action may involve nice questions of the law, on which it would be desirable to have professional advice and assistance; the bill, therefore, will leave full power to the sheriff to call in the aid of an assessor, although it will make no provision for the permanent appointment of such an officer. His assistance may be had by the sheriff, or his deputy, whenever it may be deemed requisite: and the fund arising from certain small fees of court, which will be payable by the suitors, will provide ample means for the compensation of the assessor.
The Bill will give to the magistrates in quarter sessions, the power of dividing a county into districts, for the purpose of holding the sheriff's court in each of such districts, either by adjournment, or simultaneously, as may be hereafter determined 1355 on. If the court should sit by adjournment, it may be proper to require that the sittings should be holden in each district at least once a month.
In the course of the discussions which arose in the framing of this bill, a very important question came necessarily under consideration, namely, whether the process of execution for small debts recovered in the county court, shall be against the goods of the party only, or whether it shall extend to his person also?
My opinion is, that it would be advisable to limit it to the property of the party; and that opinion is in conformity with the prevailing judgment of those whom I have consulted in various parts of the country. Supposing the remedy were against the person of the debtor; the expense of conveying a prisoner to gaol, and of maintaining him there, would be a heavy and unjust burthen on the county, with no advantage to the creditor; none, at least, sufficient to counterbalance the evil and expense incidental to confinement of the person, in cases like those for which we are now providing. I propose, however, to compensate the creditor for any risk which he may run from the loss of his remedy against the person of his debtor, by a material and beneficial alteration in the existing law. At present, the party against whom judgment is recovered in the county court, is liable only in respect to such portion of his property as is situate in the county in which the judgment has been recovered. A party against whom judgment is given in the county of Surrey, may possess property of any amount in the county of Middlesex, and may refuse satisfaction to the plaintiff, without subjecting himself to any risk in respect to the property which he holds in Middlesex. This bill provides, that be the effects of a debtor where they may, they shall be equally subject to the execution of process as if they were in the county from the court of which that process issued.
With the view of remedying very frequent complaints that have been addressed to me, with respect to the misconduct and extortion of bailiffs: I propose to give to the court a power not only to dismiss the bailiff, and to compel due payment of money levied; but, in case of extortion, to award the payment of damages to the party aggrieved; and in default of payment, to commit the offender to prison for a limited time. 1356 The only other provision of the bill which I think it necessary to notice, is that which gives to the court a power (to be exercised at its discretion) of allowing debts to be paid by instalments; so that an honest and industrious debtor may be enabled gradually to liquidate a demand which he cannot satisfy at the instant. Due precautions are at the same time taken for the purpose of guarding against the abuse of such an indulgence.
I have now detailed the principal enactments of the bill which I propose to introduce.
It has been prepared, after much consideration, by two gentlemen of very high character and great professional ability—Mr. Dampier and Mr. Wightman. Those gentlemen, acting under the directions which I gave to them before I quitted office, have made very extensive inquiries connected with the subject which was committed to their consideration. The present bill is the result of their labours, in conjunction with my own and those of Mr. Hobhouse.
It appears to me to be preferable, in some important respects, to either of the two bills which have been on former occasions submitted to this House.
By the first of those bills, the county court was retained, and the lord lieutenant of the county was empowered to appoint a permanent assessor to the sheriff, with a fixed salary of several hundred pounds per annum. This bill was subsequently modified, by giving to the Crown the power of uniting counties into districts, and of appointing an assessor in each district. In either case it would probably have been difficult to ensure such appointments as would have given general satisfaction. Local interests and connections must have prevailed to a very considerable extent in determining the appointment to a local office, partaking of a judicial character. The situation would have been naturally considered to be a permanent one; and, unless provision had been made for the retirement of the officer, in case of age or infirmity (thus subjecting the county to a new expense), there would always be a painful struggle between the desire to ensure the efficient discharge of the duties of the office, and the natural unwillingness to dismiss a public servant, whose incapacity should solely arise from age or sickness.
The second bill which was introduced, 1357 virtually superseded the authority of the county court, and devolved practically the jurisdiction, as to small debts, upon the commissioners who make their circuit throughout the country at stated intervals for the performance of the duties which are connected with the discharge of insolvent debtors. The great respectability, and high professional qualifications, of those gentlemen who act as commissioners of the Insolvent Debtors' Court, pointed them out as very fit instruments for effecting the object contemplated by this bill. I apprehend, however, that in practice the relief which would have been given by this arrangement would have been less extensive and complete than we originally anticipated. The circuits of the commissioners are taken three times a year; the number of places at which the court must be holden, to give effectual relief as to the recovery of small debts, would be so great, that the time for which it could sit at each place must necessarily be very limited. In the event of the postponement of the trial of a cause, a period of four months must elapse before it could be heard; and there is but too much reason to believe that the consequence of such a delay would be, a constant endeavour, on the part of defendants, to postpone the hearing of their respective causes, and the occupation of the time of the court in discussing the validity of the reasons assigned for delay.
A permanent local court will not be open to these objections.
Should this bill pass into a law, the county courts generally will have a jurisdiction with respect to small debts, very much resembling that jurisdiction which the county court of Lancashire exercises at the present time. By a particular statute, no action for debt to the amount of ten pounds is removeable from the court of that county. The sheriff appoints an assessor, and the court sits in different parts of the county by adjournment. The bill which I shall introduce will adopt nearly the same principle; but the forms of proceeding which it will appoint, will be much more simple and less expensive. In Lancashire, it is still necessary that a writ of justices should issue from the chancery court of the county palatine, in order that the county court may have full jurisdiction over debts below the sum of 10l.
At the commencement of the year I 1358 entertained a confident hope, that if the House should approve of the principle of the bill, it might pass into a law before the termination of this session. The political events that led to my retirement from office, and the time which I have been compelled to devote to the superintendence of the several bills relating to the amendment of the Criminal law, have compelled me to postpone the introduction of this bill to so late a period, that I cannot expect it to pass through all its stages, and receive the sanction of the other House of Parliament, before the prorogation. I propose, however, with the permission of the House, to pass the bill through the committee: and that after the blanks shall have been filled up, and the bill rendered perfectly intelligible, it shall be printed and generally circulated during the recess. The consideration of it may be renewed, with all the advantage of the intermediate discussion which it will undergo, at the earliest period in the next session of parliament.
If it be thought advisable that the charge of this bill, in its future stages, shall be committed to my hands, I will give it every attention in my power, with a view to render its provisions as free from objection, and as generally beneficial as they are capable of being rendered.
If, on the other hand, it be thought probable that the measure will be rendered more perfect, or that its final accomplishment will be better secured, by devolving the superintendence of it upon those who have official authority, and the access to official information, I tender to my right hon. friend, who has succeeded me in the Home Department, the offer of my cordial co-operation; an offer which I am ready to extend to any attempts to amend, gradually and deliberately, any other branch of our domestic jurisprudence which may stand in need of revision.—The right hon. gentleman concluded with moving, "That leave be given to bring in a Bill, for the more easy Recovery of Small Debts in the County Courts of England and Wales, and for extending the Jurisdiction thereof."
Mr. Secretary Bournethought, that the thanks of the country were due to his right hon. friend, for the various bills he had introduced to amend the laws, and for none more than for that to which he had now called the attention of the House. He was happy to give his cordial support 1359 to the proposition, and he did not give it the less willingly because the right hon. gentleman had engrafted his improvements on the ancient institutions of the country.
The Attorney-Generalwas also disposed to give his full support to the proposition, and agreed, that it was the part of true wisdom rather to amend the deficiences of the old institutions, than to attempt the introduction of new forms of law. He thought that the alteration of the law, with respect to the amount of the debt to be recovered, was such as the change of circumstances required; since 10l. now were nearly of the same real value as 40s. had been when the county courts were first instituted. With the proposition to abolish imprisonment of the person for these small debts, he also fully agreed. He thought it would be a public saving in every way; that it would be favourable to industry, and would prevent much of that misery to which an honest but poor man was now subjected. He concurred, too, with the proposal to extend the creditor's remedy against the property of the debtor; but he thought that part of the proposition might be rendered more effective, if the court were invested with the power of inflicting compulsory labour on the debtor who should attempt to withdraw his property from the reach of his creditor.
Mr. Hobhousetrusted that the bill would be passed into a law during the present session. He thought that, with regard to the recovery of small debts, the laws at present existing were a great practical evil, and that the bill to limit Arrests on Mesne Process, which had recently been brought in by the Solicitor-general, and passed with so much haste, rendered the present measure more particularly necessary. The bill of the Solicitor-general went to deprive the creditor of a part of the remedy he had previously enjoyed; and that loss ought to be made up to him by the advantage of at once giving him a greater facility in recovering small debts. He was no advocate for continuing the practice of imprisoning debtors, a practice which he should be happy to see abolished altogether; but his opinion was not that which was generally entertained; and he did, therefore, think, that when the legislature proposed to deprive the creditor of an important part of his remedy, they should afford him an equivalent for it. That equivalent was to be found in in- 1360 creasing the amount which the creditor might recover by process in the county courts.
§ Lord Althorpwished, as much as his hon. friend, that the bill might be passed this session, but he feared it would be impossible. They could never hope to pass the bill without the compensation clause; which could not be satisfactorily settled, in the short time that would elapse between the present period and the end of the session. He did not hesitate to avow, that the present bill was an improvement on that which he had himself introduced. He believed that, if once the machinery of the county courts could be properly put into action, one year of experience would enable them to suggest more improvements than they could hope to discover by the debates of many years.
§ Mr. Humewas happy to hear the Attorney-general make admissions which, on a former occasion, he had seemed to disavow. He alluded to that learned gentleman's sentiments upon the subject of imprisonment for debt. In listening with pleasure to the opinions which that learned gentleman had just expressed upon that subject, he could not but recollect how that learned gentleman had treated him, when he had proposed the very same measure which the right hon. member had now introduced. When he had proposed it, the learned gentleman had treated it as wild and theoretical; but now it came from the right hon. gentleman, it was a proposition very fit to be considered. He saw, from this circumstance, that men and not measures were regarded by the learned gentleman; since to that which he had before treated very cavalierly, he was now ready to afford his approbation.
The Attorney-Generalsaid, that the bill introduced by the hon. member for Aberdeen, and the present, were far as the Poles asunder. If he approved of the bill now offered, it was not because it was brought forward by a different individual, but because the right hon. gentleman knew more of the laws of the country than the hon. gentleman. He must say, that the hon. gentleman knew little or nothing of the laws of England. He might be a good arithmetician; he might be able, as had been said by a predecessor of his, to calculate the compound interest of a guinea for a century, on his thumb nail; but he might nevertheless be neither a Solon nor a Lycurgus. 1361 Leave was given to bring in the bill.