§ Mr. Sugdenrose to move for "leave to bring in a Bill to amend the Act of the 3rd of William and Mary, chap. 14th, for the Relief of Creditors against Fraudulent Devises, and a similar Act of the 4th of Anne, relative to Ireland." The hon. and learned gentleman went into an historical review of the law of Devises, from the enactment of the law called Statute Merchant, passed in the reign of Edward 1st, for the assurance of debts, which he observed proceeded on the basis of the old law of that day, evidently founded on the still older system of the feudal law. That law had been framed with reference to the exigences of the times, and like most laws thus judiciously framed, it had, either by the ingenuity of the judges, or the consent of the people generally, been accommodated to the improved state of society, and generally acted on since. By this law, an attempt had been made to render the property of the higher orders extra-commercial; which, in effect, proved a public benefit to the community. At that period the existence of a great public debt was unknown in this country, spreading itself over a large portion of the property of the community, and the enactment he contemplated would have been almost needless. Since that period, the state of society and of property had materially changed; and this change had produced an impression on his mind, that it would be wise to extend the statute of king-Edward, for the assurance of debts, which now only affected landed property, to property in the funds; for why should a man who was possessed of large property in the funds, be allowed, as he was at present, to live in prison, rioting and wasting that property in defiance of his creditors, and defeating the intentions of the legislature? The object of this bill was, to render the property of any man dying in the possession of a large sum of money or funded property, liable to the payment of that person's debts, though in the hands or possession of the heir or a devisee. Our law knew of but two sorts of debts—specialty debts, and debts on simple contract. Estates descending to the heir were bound by specialty debts; but in case of a devise to a stranger, if the party possessed himself of the property under the devise, and spent it before this action was brought by the testator's creditor, no remedy remained for the 369 creditor, as in the case of an heir similarly circumstanced. And this, because the former took by devise and not as heir. In order to amend the law in this respect, the act of the 3rd of William and Mary was passed. The bill he should propose to introduce would be framed so as to give, in these cases, the same remedy and assurance for debt against the devisee as against the heir at law. The act introduced by that eminent and justly-esteemed lawyer, sir Samuel Romilly, had totally failed of its effects. He was bound to state his own sentiments upon the subject, and he would venture to assert, that a more mischievous measure had seldom been introduced, for altering the practice of the court of Chancery in equity cases. By the 47th of the late king, facility was given to obtain execution, in cases of the decease of debtors possessed of real property. By that law, if a man died a bankrupt his simple contract debts could be recovered out of his real estate. The measure introduced by sir Samuel Romilly tended to increase the costs of the court of Chancery; as otherwise it would be impossible to proceed under it. But when a person did so proceed, he was stopped at the very threshold by an inquiry, as to whether the deceased was or was not a trader; which inquiry had the effect of still further increasing the expenses. It was a singular fact, that the law of the present day stood precisely as it did in feudal times, with respect to infant heirs. The guardian now, as then, received the produce of the lands, and might be looked upon as the owner of the ward and lands, until the infant became of age; and in case of an action being brought against a minor, he was allowed to plead his non-age in stay of the action; so that a creditor in such a case might be deprived of all remedy for twenty years. His object was, to remedy the evil by taking away this shield, and thereby prevent the delay and expense which took place in the suits of creditors. Another point upon which he proposed to make an alteration, which he considered of great importance, and which, if adopted, might be looked upon only as a preparatory step to a still greater and more important alteration in this branch of the law, went to enable the infant to consent to a sale for the payment of creditors, instead of pleading his non-age. As the case now stood, a court of Equity would 370 sell an estate in cases where the infant was under twenty-one years of age; but after a man had paid his money, they refused to make a conveyance of the property, alleging that they had no power to do so until the minor came of age. The purchaser might remonstrate against the injustice of paying his money to the creditors of the property, without securing to him a proper title to it, but without effect; the bargain was made, and he must wait for years until the minor became of age. There was one case, where a purchaser who had been so treated by a court of Equity, sold again to a second purchaser; who, however, refused to fulfil the bargain, unless a proper conveyance was made to him. "Oh, but" said the first purchaser, "I'll make you fulfil it; I purchased from a court of Equity in a similar way but could receive no conveyance." The case went into Chancery, and what did the then lord chancellor do? He decided that the second sale was defective, inasmuch as the first purchaser had not obtained a good title to the property; so that the unfortunate first purchaser had his money divided amongst the creditors of the estate, while he was left not only without a conveyance, but was also saddled with the additional expenses of his application. The clause which it was his intention to introduce would allow the infant to make a conveyance at once: in short, his object was so to alter the general law upon this subject, as to give every facility to the recovery of the debts owing by persons dying possessed of landed property. This he proposed to do, by at once simplifying and consolidating the other acts, which as they now stood, were couched in difficult phraseology, and not easily understood. It had been stated on a former occasion, that he was an enemy to all reform in the court of Chancery. Those who entertained this opinion, laboured under a great mistake. No man was more anxious than himself, to do away with the complex and surplus forms of those laws, which, taken as a whole, he looked upon as the best by which any country was governed. He admitted that there existed anomalies which ought to be removed. He looked at the substance and at the forms of those laws, and where these forms were intricate, or unnecessary and useless, he was anxious that they should be removed. He hoped the motion he 371 was now about to make would be taken as an humble pledge of his sincerity upon this point. When allusion was made to the appointment of a commission on this subject, it was hinted that he was likely to be appointed one of its members and to have a certain control over it. He was decidedly opposed to any such appointment, and was not to form any part of such commission. But it was objected, that gentlemen of the profession ought not to be appointed members of that commission, because they were prejudiced in favour of existing forms; but if they were not to appoint such men, were they to select unlearned men; men unacquainted with the evils which existed, and the remedies which ought to be applied? The learned member concluded by moving "for leave to bring in a Bill for further facilitating the Payment of Debts out of Real Estates."
Mr. Wallacesupported the motion, and expressed a hope that the learned member would obtain, as he deserved, the thanks of the country for his exertions to amend the law in this respect.
§ Mr. Humesaid, he congratulated the learned gentleman upon the course he had taken upon this occasion, as he, for one, had set the learned member down as an opponent of all reform in the court of Chancery. If the hon. member acted up to his statements of that evening, he would effect all that was desired by those most anxious to reform the abuses of that court. He thought that the estates of a debtor, dying possessed of landed property, ought to be made available to the payment of his debts, as well as personal property.
§ Leave was given to bring in the bill.