ARREST ON MESNE PROCESS.

HC Deb 22 May 1834 vol 23 cc1222-8

Mr. Pollock

rose to move for leave to bring in a Bill for the Abolition of Arrest for Debt on Mesne Process. The House must be aware, that some time ago there was a report presented upon the subject by the Common-law Commissioners, in which many statements were made, and many interesting details given, with which it was not his intention to trouble the House on the present occasion. He believed that there was not any man acquainted with the Constitution of this country, who would deny that, as the law originally stood, arrest of the person was only permitted in cases where the plaintiff complained of injuries that had been perpetrated upon him by the defendant by force, and that arrest of the person for simple contract debts was, comparatively speaking, a modern practice. Though the avowed object of the practice was to compel the defendant to give security for his personal appearance in Court at the suit of the plaintiff, it was well known that, in ninety-nine cases out of 100, that was not the real object. The real object was to compel the immediate payment of the debt, or, by the menace of imprisoning the defendant, to compel his relations to discharge it for him, and thus it happened that the apparent seldom, if ever, coincided with the real object. He did not expect to hear any man assert, that the present state of the Law of Debtor and Creditor did not require amendment. He had the honour to be one of the Commissioners appointed to inquire into the necessity of its Amendment, and he was bound in fairness to admit, that the Report of those Commissioners had not been unanimous. One of the Commissioners had differed from his colleagues; but the majority had concurred in the propriety of bringing forward a measure of a much more extensive nature than that which he was now about to propose to the consideration of the House. Indeed, the recommendation, which the Commissioners had incorporated with their report, went much further than he intended to go that evening. Whilst there was any prospect of any Member of the Government coming forward to take up this measure on a broad scale, and with that extensive machinery which none but the Government could properly supply, he had declined to interpose in any way by bringing forward a motion of his own; and it was only now, when nothing but a faint chance existed of its being brought forward in this Session by one of the legal advisers of the Crown, that he came forward to propose a measure which he must admit to be partial and inadequate, but which, nevertheless, would give some relief in the case of debts which never ought to be made the subject of arrest. In order to remedy all the evils of the present system, it would be necessary to introduce a machinery much more extensive than he, as a private individual, could hope to induce the Government to adopt. What he proposed to do was this,—and it was in perfect accordance with the special enactments of many modern Acts of Parliament:—The House was well aware that, upon many simple contract debts, forms in writing were now necessary, where formerly a verbal agreement was quite sufficient. It was upon this ground that he proposed to make a distinction between verbal contracts and bills of exchange, promissory notes, bonds, and other instruments under seal, for the payment of money. At the same time he thought it only fair to state, that if a majority of the House should be of opinion that the provisions of this Bill ought to be carried further, and that arrest upon mesne process should be abolished, except in cases of fraud which he would hereafter specify, he, for one, should not object to such an extension of its provisions. It was necessary, however, to guard against the indulgence which this alteration would give to debtors, and therefore he proposed that the Courts of Westminster-hall, or one of the Judges, in cases of emergency, should have the power by rule or order to cause a party to be arrested in case it should be made appear to the Court or to the Judge, that the party against whom the application was made, either intended to run away from the justice of the country, or to transfer his goods to some other party, or by fraud to deprive his creditors of their just claims upon them. He candidly confessed, that though he was now bringing in this Bill, he confidently looked forward to the period when imprisonment for debt would be abolished in all cases where the failure of payment arose from the misfortune of the debtor, and when it would never be enforced except in cases of fraud. To him, it appeared, that imprisonment for debt was a most clumsy contrivance, even for the object which it was intended to promote, and which, in most cases, it was most effectual in defeating. As that system made no distinction between the unfortunate and the guilty, and as it placed it in the power of any creditor to help himself to the goods of his debtor, he did think that it required the early attention and consideration of the House. Having made these observations, he would only add, that the object of his Bill was, to abolish arrest for debt, except in the cases which he had already mentioned. He hoped that he had now stated sufficient to induce the House to receive this Bill. If there should be any gentleman anxious to carry the details of the measure further, or to state exceptions, which he had not already noticed, he should be most happy to take them into the fullest consideration. The hon. and learned Gentleman concluded by moving for leave to bring in "a Bill, to abolish arrest for debt, as to all debts contracted after the 1st of January, 1835, unless the debt be founded upon or secured by a bill of exchange, a promissory note, bond, or other security in writing."

Mr. Baring

hoped this would not be treated like some other measures of proposed improvement in the law which were introduced at late periods of the Session, and suffered to pass without sufficient consideration of their consequences, and after very little discussion. Highly as he thought of the gentlemen of the learned profession, and of their theoretical knowledge, he must say they did not always prove themselves to be good judges of what was best in practice. He had much experience in such matters, and that experience led him to doubt whether the experiment would be a successful one. He anticipated quite a different result, and, in his opinion, the effect of the Bill, if carried, would be to encourage frauds, and to let loose swindlers upon society. Such, he was convinced, was the opinion of nine out of ten of the commercial men of this country. He never himself had a man arrested for debt. Indeed, men engaged extensively in commerce, seldom had recourse to such a means of recovering debts. It was said, a man's property should be answerable, not his person; but how, in many cases, could his property be got at without arrest? His hon. and learned friend said, the object, in nine out of ten cases, was to induce relations, from feeling or some other motive, to come forward and satisfy the creditor. And what evil was there in that? Was it not desirable that the honest creditor should be paid his just demand in this or any other fair way? The misfortune at present was, that all the sympathy was against the execution of the law, and not in favour of the honest creditor. He would only exempt the innocent debtor from imprisonment, and to that extent a change of the law would be salutary. It was said, in favour of such a measure as this, that it would put an end to the system of contracting debts. It was impossible that trade could be carried on without credit. Even persons with the largest capital could not do it. What was to be done with the young spendthrift, who contracted a debt with his tailor or any other tradesman, who had no means of payment, and who, by the appearance he was thus enabled to make, placed himself in the way of defrauding other honest men? By this Bill he would be protected, and the honest creditor defrauded. It would be very difficult to say, that a debt was not justly contracted for; it might be in the power of the party contracting it to say, that he had expectations. He would, however, defer the remainder of his objections to the second reading of the Bill; but in reply to his hon. and learned friend, he would ask in what manner could a creditor avouch his debt except upon his oath. He did not know any part of Europe in which there was an exemption from arrest for debt—no, not in America itself, unless it were by a very recent enactment.

Mr. Richards

rose amid loud cries of oh! and said he was most anxious to record his disapprobation of the measure then before the House. His opposition was founded on a knowledge of the trade of the country—sufficient, he would hope, to warrant him in the course he felt it his duty to pursue. The hon. and learned Gentleman who had introduced the Bill, might dilate with great pathos and force on the hardships inflicted on the unfortunate debtor; but did he think al all of the deceived and disappointed creditor? It might do well for Gentlemen of the hon. and learned Member's profession to exclaim against imprisonment for debt; but it should be recollected, that members of the Bar gave no credit; they were paid in ready money. Far—far different was it with men in trade. He (Mr. Richards) had lost more by bad debts than he would like to name to the House. The present Bill, if carried, would be productive of the most serious evils. It would deprive the creditor of his just means of redress. It would, in fact, annihilate the business of the country. He begged pardon, it would increase the business of lawyers, and, therefore, they would be found among its most prominent supporters. He would appeal to any man of commercial knowledge who heard him, whether he was not correct in what he said. In fact, the Bill was introduced by those who were lamentably ignorant of the trade of the country, or were actuated by a pseudo-liberality, which might for a moment excite popular favour, but which would be found neither just in principle, nor correct in practice.

Mr. Cutlar Fergusson

said, that the two hon. Gentlemen who had preceded him seemed to contemplate that there could be no debtors but swindlers. When it was said, that trade could not be conducted without the power of arrest on mesne process for debt, he was obliged to ask, had hon. Gentlemen ever cast their eyes upon such a country as Scotland? Did they recollect that there were such places as Dundee and Glasgow? For his own part, if he had any objection to the present Bill, it was, that it was partial, that it was not sufficiently extensive, that it did not go far enough. He could not see any reason why the holder of a bill of exchange or promissory note, or a bond, should have a right to seize the body of a debtor in preference to a creditor of any other description. He thought that fraud or the absconding of a debtor from the jurisdiction of a Court was the only justifiable cause for arresting the person of a debtor, and that simply because it endan- gered the prospect of the creditor's recovering his just demand. He was sorry, very sorry, to hear, that the hon. member for Knaresborough had lost so much money by bad debts; but the hon. Member ought to recollect that he had lost it under the present system of coercion, and that he could not be worse off even under the proposed system which he so much deprecated, and that, under either, he could not lose more than all.

Mr. Tooke

gave the Bill his cordial concurrence. He wished to set the hon. member for Knaresborough right upon one point. So far from excessive legal costs arising out of this measure, the contrary would be the case. The main expense was now occasioned by proving book debts, which would be done away with by the present measure. Tradesmen would, in future, take written acknowledgments, and the cost of proving the delivery of goods would be avoided.

Mr. Serjeant Spankie

was of opinion, that if we put an end to arrest for debt we should destroy the present system of credit, without which business could not go on in this country. The object of arrest was to compel the summary payment of debts which in many instances, could not be collected without such a process. The apprehension of arrest caused men to calculate before contracting debts, and its effect was to prevent litigation. He believed, that if the law passed it would let loose a spirit of adventure which nothing could restrain.

Mr. Alderman Copeland

would be delighted to see the Law of Arrest for mesne process ameliorated, but entreated the House to pause before adopting a measure the effect of which would be to give one class of creditors a preference over others.

Mr.Rotch

was opposed to the Law of Arrest as it stood at present, but apprehended that in small transactions it afforded the only security to creditors. On the whole, he thought that it would be well for the House to pause before legislating on the subject.

Leave was given to bring in a bill.