Mr. Fergussonrose to present a petition of which he had given notice, from the British, native, and other inhabitants of Calcutta, respecting the law of Real Property within that settlement, and particularly respecting the liability of such property in the hands of executors and administrators to the payment of the debts of the deceased. This petition, which was signed, he believed, by almost every person of respectability and opulence in Calcutta, complained of the imperfect and unsettled state of the law in that particular, arising chiefly from some late decisions of the Supreme Court, affecting property to the amount of many millions sterling.—The petition stated, that previously to the granting by his majesty Of the charter of the Supreme Court, in 1340 1774, houses and lands of British subjects were liable to be seized and sold for the payment of debts, as well in the hands of the owner in his life-time, as of his executor or administrator after his decease. The letters patent or charter of justice, of 1774, recognized this to be the law; for after giving to the Supreme Court the power to try and determine actions and suits of a personal nature, and "all rights, titles, claims and demands, of, in, and to, any houses, lands, or other things, real or personal," within the provinces of Bengal, Bahar, and Orissa, against his majesty's subjects, and against the executors and administrators of such his subjects, it authorizes the same court to give judgment in such actions, and thereupon to award and issue writs of execution, commanding the sheriff to seize, and deliver possession of houses, lands, and other things recovered by such judgment; or to levy any sums of money recovered by such judgment, by seizing and selling so much of the houses, lands, debts, or other effects, of the party against whom such writs shall have been awarded, as shall be sufficient to satisfy such judgment. The petition stated that it was the meaning and intention of this provision in the letters patent, to place houses and lands on the same footing with personality as to liability for debts, either in the life-time or after the death of the debtor, and that such had always been considered to be the law, and never had been doubted until lately, when in a case decided in the Supreme Court, sir Charles Grey, the chief justice, had declared it to be his opinion, that such estates being of inheritance, which he thought British subjects might hold in Calcutta, were no assets in the hands of an executor or administrator for the payment of debts; and that, if liable for the debts of the deceased at all, they were liable in the hands of the heir, who was the person to be sued, and not the executor or administrator. The other two judges, however, sir Anthony Buller and sir John Franks, were of opinion that such estates were liable to the payment of such debts, and were assets for that purpose in the hands of the executor or administrator, who might lawfully sell and convey the same.—The judgment of the court was given in favour of such power, but the petition stated, that such was the alarm created by the effect of the opinion given by the chief justice, joined to a decision which had subsequently taken 1341 place respecting a claim of dower, that the sale of houses and lands by executors and administrators had been wholly suspended, and that all titles to houses and lands which had ever been conveyed by an executor or administrator were rendered liable to objections and doubts. He (Mr. Fergusson) could well conceive this, for he had no hesitation in saying that if the law was, as laid down by the chief justice, of whose talents and learning he could not speak otherwise than with respect, it would go to shake almost every title in Calcutta. In the course of a long practice, in which numerous tales had come under his (Mr. Fergusson's) consideration, he scarcely remembered one in which some link in the chain of title did not consist of a conveyance from an executor or administrator. He (Mr. Fergusson) could safely say, that during a practice of seventeen years, he had never heard either at the bar or from the bench, a doubt thrown upon the law, that an executor or administrator had a power to sell an estate in lands or houses, whether of inheritance or not, for the payment of the debts generally of the deceased, and that such estate was assets in his hands for that purpose. The case of dower referred to in that petition, was one in which the chief justice and sir John Franks, the only two judges who then constituted the court, concurred in holding, that the lands of a British subject in Calcutta could not be sold, either in his life-time or after his death, for the payment of his debts, unless subject to the right of dower. This was, certainly, the first decision that had been given in the Supreme Court in favour of dower, as a claim preferable to debts; and the petitioners contended that by the law and practice which had at all times obtained, lands had been seized, and sold by the sheriff under writ of fieri facias, as well in the lifetime of the owner as (after his death) in the hands of his executors or administrators for the payment of debts, and that no reservation had ever been made or claimed to be made on account of dower.—Whatever might be the law on this point, it would seem that, for the future at least, it would be most desirable that in a commercial community like Calcutta, the transfer of landed property, particularly for the payment of debts, should be entirely freed from this charge, and the rather as by the bankrupt law, the real estate of a bankrupt situate in any part of 1342 the dominions of the Crown passed by the assignment and became liable to the payment of the bankrupt's debts discharged from all claim of dower. There was another judgment of the Supreme Court mentioned in the petition, which was the unanimous judgment of the three judges, but in which the point was decided for the first time, that an alien could not take lands by descent in Calcutta. From the protection afforded by the British government to persons residing within its territories it was certain the subjects of foreign states had been induced to resort to and settle in Calcutta, and had purchased lands and houses which had descended to their heirs, as the petition stated, without let or hindrance. In the two first charters, which were granted in the reigns of George 1st and 2nd it was recited, that the "United Company had, by strict and equal distribution of justice, very much encouraged not only his Majesty's subjects, but likewise the subjects of other countries, and the natives of the adjacent countries, to resort to and settle in Calcutta." This was a point of great importance, and which involved questions of general consideration; and he (Mr. Fergusson) was sensible that if any thing was to be done to alter or affect the law on this subject, it must be under an express sanction of the Crown. There was one remaining point noticed in this petition, which was also of great interest, he meant the want of a proper law respecting insolvent debtors, whereby many persons were imprisoned for a great length of years in the gaol of Calcutta, although they had no means of discharging their debts, and had delivered up all they possessed. He (Mr. F.) understood that a bill for the purpose of remedying this evil was now in preparation, under the sanction of the Court of Directors and the Board of Control. This subject he did not therefore mean to include in the bill, which it was his intention, after presenting this petition, to move the House for leave to bring in. He thought he had said enough to satisfy the House that the law, and the very important subject to which he had called their attention, ought not to be suffered to remain in its present unsettled and imperfect state; he did not, therefore, anticipate any objection to the motion of which he had given notice for that evening. In the mean time he would content himself with moving for leave to bring up the petition.
§ Mr. Humeexpressed his satisfaction at seeing the subject taken up by the learned gentleman, and proceeded to comment upon the want of attention towards the affairs of India in general. They had a Board of Control; but he was at a loss to discover in what respect that Board devoted their attention to India. The members of it were often turned out in the course of a year, not because they were unfit for the office, but because they belonged to one or other political party. His majesty's government, in looking back for a series of years, should take shame to themselves for the manner in which they had conducted the government of India, and for the way in which that Board of Control, which presided over a hundred million of men, had been constituted and maintained. He condemned the restrictions which existed upon the commerce and intercourse between this country and our Indian possessions. Those possessions were full of wealth, and abounded in large tracts of rich and unoccupied land. Why not remove these absurd restrictions, encourage emigration thither, and, instead of sending English capital to the various countries of South America, allow it to be employed freely and advantageously in India? He trusted that the learned gentleman would go on with the subject which he had taken up. He might look for the support of that House, and of public opinion out of doors.
Mr. Fergussonsaid, that so far as he had communicated with the Board of Control, he had found on the part of its members, and particularly on the part of the right hon. gentleman (Mr. Wynn), its late president, the greatest facility and attention afforded to him. Indeed, the right hon. gentleman had upon all occasions exhibited the most sincere intentions and assiduous zeal for the promotion of the interests of India.
§ Mr. Trantagreed with the hon. member in the propriety of the measure he wished to introduce. In his opinion there ought to be a discussion every year in the affairs of India, similar to that introduced by the late lord Melville when he brought forward his yearly Budget. Such discussions tended greatly to enlighten public opinion upon the subject of India.
§ Mr. T. P. Courtenaydefended the Board of Control from the reflections of the hon. member (for Aberdeen), and de- 1344 clared, that he never recollected any man who had attended with more assiduity, he might even say affection, to the concerns of the people of India, than the late right hon. president. After observing that there had always been an understanding that the law of India was such as the hon. gentleman stated it to be, although it was not supported by the strict form of expression in the charter, the hon. gentleman expressed a hope that the member for Aberdeen would bring his charge against the Board of Control before the House in the form of a motion. Nothing could give him more pleasure than to meet the charge.
§ Mr. Wynnsaid, that, during the time he had been connected with the Board of Control, he had commissioned a chief justice who was sent out from this country to collect information respecting the propriety of introducing the Insolvent Debtors' laws there. That learned judge, however, fell a victim to disease in about six months after his arrival in India, and consequently the desired information was not collected. Great difference of opinion existed on the subject in India. If it could be done, he was of opinion that it would be better effected by some species of regulations respecting debtors there, than by any legislative enactment here. The draught of a bill upon the subject had arrived in this country a few days previous to his leaving office, and he recommended to the noble lord, now at the head of the Board of Control, to have the matter laid before the law officers of the Crown. Perhaps it might be supposed that he (Mr. Wynn) would be most competent to introduce the subject to the consideration of the House; and if that were the case, he should be very happy to do so.
The petition was ordered to lie on the table; and Mr. Fergusson obtained leave to bring in a bill "to explain and amend the Law respecting Real Property belonging to British Subjects and others within the jurisdiction of His Majesty's Courts in India, and the liability of such property as assets (in the hands of Executors and Administrators) to the payment of the debts of deceased persons."