HC Deb 09 November 1830 vol 1 cc338-46
The Solicitor General

moved for leave to bring in a bill to restore and amend the Act of the 29th Charles 2nd c, 3. known by the name of the Statute of Frauds. At a very early period of the reign of Charles 2nd this Statute was passed, for the purpose of preventing the inconvenience which arose from men being considered as bound by word of mouth, without the bargains to which they agreed having been put into writing and signed by the parties. He wished first to make a few observations on that portion of the Act which referred to contracts for. land. The Statute enacts that no one shall bring an action against another party unless the agreement by which such action shall be brought, or some memorandum or note thereof, shall be in writing, and duly signed. The Amendment which he meant to propose by the Bill he wished to bring in, would be of the utmost importance to every man in the country, as it would apply to all contracts, whether for the sale and purchase of land, or for the sale and purchase of goods. The Statute enacts, as regards land, "that no person can bring an action against another unless the agreement by which such action be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other party thereunto, by him lawfully authorised." To amend this Act was of the utmost importance, inasmuch as it related, in a greater or less degree, to the transactions of every man. That part of the law which related to the sale of lands required an agreement in writing, signed by the party to be charged: whereas the contract for the sale of goods required the signature of both parties. It had long been considered, and he had no doubt was so intended, that the signature to an agreement for the sale of lands ought to be plural. The present mode had afforded an opportunity, in many instances, for the exercise of fraud. If he were to write an order for any person to sell his estate, that person could do so, and he should be bound by that act: for the other party, to compel him to perform the contract would only have to file a bill in Chancery. Many transactions of this nature had taken place, and the property of the party been completely wasted by the expenses. Even upon a mere letter had such a course been adopted. In regard to the sale of an estate by auction, the auctioneer did not sign the agreement, although he compelled the owner and seller to attach his signature to the instru- ment, and he then had his remedy against the seller in case of his not completing the contract. This was one of the unequal results of the Act he was desirous of amending. The Statute had led to the greatest inconvenience, and caused enormous expense. He purposed to remedy these evils by making all the parties sign the agreement, so that all might become bound by it, by which the establishment of a better understanding and of greater equality would ensue. That would prevent he believed not mere inconvenience, but much litigation. It would also have the effect of compelling the parties to come to a proper understanding before putting their names to an agreement and it would put an end to acting on one of a series of letters alone, which, in some cases, had been held as forming a contract. To shew some of the effects of the law as it at present stood, he would quote a case and an opinion of the late Lord Thurlow on the effect of this Act. One party had agreed to sell a certain property, and another had consented to become the purchaser. An agreement of contract was prepared for the signature of the two parties; and it happened that, at the time appointed for its execution, the seller could not attend. A note was, therefore, written, and sent off to him, appointing another meeting; but to that also he was unable to come. He, however, sent a letter, in which he stated that he considered his word to be as sacred as any oath Accordingly, the purchaser executed the agreement, considering that it was as good as executed by the seller, but he was mistaken. The seller refused to act upon the agreement, and the purchaser was compelled to file a bill in Chancery. On the matter coming on for Lord Thurlow's decision, his Lordship held, that under the Statute of Frauds, the agreement was good, and the purchaser was entitled to the property. Another part of the Bill: related to the signing and attestation of wills. The Statute of Frauds requires "that the will shall be signed by the testator, and that such signature shall be witnessed by three or four credible witnesses, who shall affix their names to the will, as an attestation of that fact, in the presence of the testator." The object of this part of the Statute of Frauds was, to secure that the witnesses should be present at the time the testator signed his will, and that the testator should see them affix their names to the document, as witnesses of his last act and deed. It was, however, soon discovered that cases frequently occurred where this was not done. He remembered a case where a lady went in her carriage to the chambers of her legal adviser in Lincoln's Inn, for the purpose of executing her will. The clerk went to her, but she refused to alight, and executed the will in the carriage, which had been backed in such a manner as to enable the clerks in the office to see her put her signature. After that was done, the will was taken into the office, and the clerks signed it as having witnessed the act. That was held to be a good attestation. At this moment there was a case somewhat of a similar nature in the Court of Chancery, where it had been for many years, and of course attended with great expense; the case of the Duke of Roxburgh. The testator was in so debilitated a state, as to make it dangerous for him to have strangers in his room. It was therefore arranged, that the door which communicated with the room adjoining that in which the invalid was confined, should be thrown open, and that a table should be drawn in a line with his Grace's head, so as to enable him to witness the signatures of the witnesses to his own signature. The witnesses having been placed in such a situation as to obtain a view of his Grace, the will was taken to him when he was in a state of extreme exhaustion; and after he had signed it, it was carried into the other room, where it was attested by the individuals who attended for that purpose. Nothing could have been fairer. The will, however, had been disputed; and the question raised was, whether the witnesses signed at that part of the table which was in the line with the head of the testator; or whether they affixed their signatures when they were standing on that side of the table which was not in the line. The question had already been decided by two juries; but the Judge not being satisfied, according to the law of the Statute of Frauds, had sent it for trial again. He found no fault with the learned Judge, because he was bound by his oath to be satisfied as to the law, and to take care that the decision was according to the meaning of the particular Statute under which the case might come. It was, however, disgraceful to the law of this country that t should lead to such re- sults—the Judge being compelled either to direct against his oath, or to find against the law. That was a state of things which ought not to continue longer than could possibly be avoided, and he meant to propose by the bill which he moved for leave to bring in, that it shall be enacted, that all witnesses to the signature of a testator do, bonâ fide, attest the same before they depart from the house, and that attestations of this nature shall be considered as valid. Having given a slight sketch of the bill, and some of the leading points in it, he should move for leave to bring in a bill to amend and extend the provisions of the 29th Charles 2nd c. 3, entitled an Act for the Prevention of Frauds.

Mr. D. W. Harvey

said, nothing could be more delightful he was sure, to the House, or give more satisfaction to the country, than to find the officers of the Crown ready to bring forward propositions for the reform of the laws. An effect might be produced in the various Courts by declamations and orations; but it was only by introducing judicious reform, that a beneficial result could be produced; and it was to be regretted that the hon. and learned Gentleman opposite should be able to bestow only a small portion of his time on the important subject of legal reform. Were it otherwise, the work of improvement would not move on so slowly. On those parts of the generality of Acts which related to matters of law, manifold constructions were continually put. If, therefore, in every Session but one wholesome measure was introduced, we could not expect that reform in the Court of Equity which was so much required, to be completed before many years. He was sure that the opinion expressed by the hon. and learned Gentleman on the doubtful constructions of the law, must have weight; and he hoped that he would devise some plan by which all unnecessary inquiries into the title to estates should be put a stop to. Some law was required to set those inquiries at rest, which under the present laws, were continually arising. It would be advisable that some system should be laid down by which the possessor of an estate should be undisturbed in his possession. He should say, for instance, that if evidence could be given of possession for the period of twenty years, it would perhaps, be the best security to such property that could be devised.

Mr. O'Connell

was of opinion, that the the Bill proposed by the hon. and learned Gentleman was a measure of great importance. He should not trespass on the time of the House, were it not to express his regret at the mischief arising from the Judges making the law, instead of having it made for them by the Legislature. It was with great satisfaction that he had that evening witnessed an attempt to improve the Statute of Frauds; in proof of the necessity of an alteration, he adverted to the fact, that though the Statute of Frauds was passed late in the seventeenth century, yet, before the end of that century, the litigation arising out of it cost the people of this country not less than a million of money. It was a disgrace to England that she did not possess a code—she should have her laws in a small book accessible to every one. The merit of a code was always admitted by the nations that had enjoyed one, and the longer it had been known in any nation the more that nation was attached to it. The Bourbons, it was well known, could not have been restored, had they not consented to retain the code Napoleon and it was one of the chief grievances of the Belgians that that code had been abolished in their country. That code was by no means perfect, but the simplicity and brevity which distinguished it were its great recommendations. The evils of our laws were manifest, and the habit which had grown up in this country for the Judges to make the law by the interpretations they put on the Statutes was most mischievous. The Statute of Frauds was not understood for 150 years—till Lord Ellen-borough in the case of Warne v. Warlters, discovered the true construction. In making that discovery the noble Lord upset all the previous decisions on the subject, and the unhappy clients who might have acted under the advice of their lawyers, founded upon previous decisions, would have found themselves in the wrong. It was true that Lord Eldon had never bowed to Lord Ellenborough's decision in Warne v. Warlters; but it was admitted at the present day as a binding authority. Under these circumstances he recommended a code. Every contingency must, in some measure, be provided for, and the only question was, whether it should be provided for at first or at last? He declared that he had never felt a comfortable hour in the discharge of the duties of his profession, for he was always sure, under our present system of laws, that justice was only to be got by accident.

Mr. Hughes Hughes

supported the Motion and offered to the hon. and learned Solicitor General his humble praise for his great and continued exertion in bringing forward so many useful measures.

Mr. Campbell

said, that the hon. and learned Solicitor General would add to his high character by the measure which he now proposed. The first part of that measure related to the sale of lands under the Statute of Frauds. To that he had no objection, but he much wished, that the hon. and learned Gentleman would allow the subject of wills to remain untouched, for that was at present under the consideration of the commission of which he had the honour to be a Member. The law relating to wills was certainly in a most unsettled and barbarous state. Three witnesses were now required to authenticate a will, which was to pass a quarter of an acre of land, if it happened to be freehold; while property to the amount of 20,000l. a year might be disposed of, even without any signature, if that property happened to be copyhold; and the same was the case with regard to property of any amount in the funds. That, however, was not all. A change of the tenure by which the land was held would defeat a will. There was the case of the late Lord Erskine, in whose favour a will had been made, but who lost it because the gentleman who intended to leave it him had, after making the will, suffered a recovery, in order, as he supposed, to make all sure in favour of his legatee. The act of suffering a recovery was, by the operation of law, a revocation of the will, and though the testator had intended just the contrary, Lord Erskine lost the estate. Another evil consisted of the rules of interpretation in cases of wills. If a man left another a horse, the legatee received the property in full and absolute possession, but if he left "a field called Blackacre," to any person, the legatee would only have an estate for life because the testator did not add the words, "his heirs and assigns for ever." As to the point of adverse possession, he agreed with the hon. Member for Colchester, that twenty years of adverse possession ought to give a title, and such was now proposed to be the rule. This subject had been under the consideration of the commissioner and that was the decision they had come to. He fear- ed that the law never could be made as perfect as the hon. member for Waterford imagined. Every man could not be his own lawyer. Law was a science, and must be acquired, and men could no more be their own lawyers than their own physicians. He feared, too, even if a code were introduced, that Judge-made law could not be avoided. There was as much Judge-made law in France as in England; the reports of cases in France were more numerous than our own reports; for wherever there was law there would arise cases not exactly foreseen, and then the Judges must become the interpreters of the law, and to that extent the law-makers. What he admired the code Napoleon most for was that it gave one law to the whole country, instead of the different systems which formerly prevailed in its different provinces.

Mr. Hume

was happy to hear so many reformers on every side of the House; and since the hon. and learned Gentleman had thus frankly stated his opinion on the subject of adverse possessions, perhaps it might be allowable to ask him whether the proposal as to twenty years adverse possession giving title was to be applicable to church property? He asked the question because he thought the time was come when church property ought to be put on the same footing as other property?

Mr. Campbell

thought that, in cases of church property, this rule ought to be applicable so far as possible. That at least was his private opinion. He had devoted a great part of the late vacation to framing such a law. That law must be framed differently from laws relating to other property, for church property was held upon so many and such various tenures. It was his wish that the church should preserve all its present possessions, but that the litigations now daily arising with respect to the tithes should be at an end. That would be beneficial to the church, and, as a friend of the church, he should recommend it.

The Solicitor General

regretted, that the question as to Church property had been put to his hon. and learned friend, as that matter was not yet in a state to be presented to the public. As to the other questions now under the consideration of the House, there was but one opinion; but the question was as to the time at which the limitation was to take effect? He was opposed to a code. We had, at present, the finest body of laws in the world, and it was not necessary for the hon. member for Middlesex to understand them as well as a lawyer. Law was, and must be, a science, and it would be the greatest possible curse when it was not so, and when every man could understand it, for at that instant certainty would have flown. If tomorrow the plainest law possible were to be made, in time the interpretation of that law would become matter of science. He maintained that in no country in the world were there, as in England, so many means of limitation, with regard to an estate, so as to secure a life enjoyment to the owner, and a provision for his family after his death. All that could not be accomplished by the simple declaration "it shall be so." The most fixed words were required for such a purpose; [hear, hear!] and it was for hon. Members who cried hear, hear! to learn these words. He repeated, that if the law was to be reduced to a code, certainty in it would be gone, and "certainty," as the law said, "was the mother of repose." The law had a peculiar language, which it required time to understand; and when he said it was not necessary for the hon. member for Middlesex to understand it, he meant that the man who devoted his attention to other subjects must not expect to be able to understand the law. He did not pretend to rival that hon. Member in a knowledge of finance, and that hon. Member could hardly expect to be equal in his knowledge of the law to those who had studied it all their lives. He trusted that the measure he was about to introduce would satisfy the best wishes of the country.

Leave given.