§ The Lord Advocate
said, there are a great variety of subjects which are recommended to the consideration of the Legislature by the two Reports of the Law Cora mission for Scotland, and by the Report of the Municipal Commission, and it will be my duty, as soon as the time of the House will permit, to lay before the House for their consideration, and that of the country, such bills as may appear calculated to carry those recommendations into effect. There are, however, other bills which have been already under the consideration of the House, and which were not passed last Session owing to the various urgent and important matters which then occupied the time of the Parliament, but which ought now to be brought under consideration of the House Without delay. The first is a bill for regulating the sequestration of the estates of bankrupts in Scotland. That bill has been before this House in various forms for a great number of years. There were points of very great difficulty, which produced differences between different portions of the profession, and a contention as to principles, which it was not easy to reconcile and carry into practical operation. It was absolutely necessary that there should be somewhere a general superintendence and control over all sequestrations, to what- 915 ever part of Scotland they may be applicable, and that English or foreign creditors should be able to ascertain what the proceedings were, and how they were carried on. If that were not done, sequestrations might be obtained and carried on against the same companies or individuals in various parts of the country at the same time, because they might happen to have places of trade and business in different counties. On the other and, the various subordinate proceedings in sequestrations can be carried on with much less expense, and the investigations made with greater efficiency in the local courts than they can be at Edinburgh. Most of the important points connected with these matters were adjusted in the Bill which was before the House last Session, but which was not finally reported until the middle of August. Some objections, though of minor importance, were still made to the Bill, while some of the most extensive mercantile communities in Scotland were desirous that it should pass as it then stood. There was not, however, sufficient time at that very advanced period of the Session, During the recess I have had many meetings with persons well acquainted with the subject, who are not satisfied with some of the provisions of the former bill, and the result of those conferences was to reduce the remaining differences to a very few, and I may say, not very important points. The Bill which I shall now lay before the House will be the same, both in principle and in all important respects as that formerly introduced. The arrangements will be found in some respects, to be improved, and I have availed myself of the assistance of a learned Friend to concentrate and simplify some of the clauses. While the Bill will be equally comprehensive, it will be in some respects shorter than that of last Session. This Bill comprehends a number of points most important to persons of all conditions in Scotland and will, I believe, more than any other bill, diminish the expense of legal proceedings to those of the community on which they bear most severely. The law of Scotland has always had a just and well founded abhorrence of imprisonment. According to the principles and practice of that law, no person can be imprisoned because he is unable or refuses to pay a civil debt, but certain forms must be gone through, and after the judgment of a court, he is commanded, in the King's name, to pay the debt he owes to an individual, and on his refusing to comply with the orders of 916 his Majesty, he is denounced a rebel. Every ordinary act of imprisonment is, therefore, on a writ of rebellion against the unhappy subject of it. The principle and feeling of the law of Scotland is most laudable, but it occasions a great deal of expense, which ultimately falls on the unhappy debtor whom the law is anxious to deal with in the most lenient manner. The Law Commissioners took the matter into their consideration, and they have stated, "that after the most attentive consideration we cannot discover any reason why the principle of direct execution should not be adopted universally, and extended to the effect of attaching the debtor's person as well as his estate. We apprehend that extracts of the decrees of the Court of Session, as well as of the Sheriff's Courts, might easily be so framed as to supersede letters of horning and caption, by embodying a warrant of charge for payment, and also of arrestment, poinding, and imprisonment, in case of failure to pay." The report of the Law Commissioners, to which I beg leave to refer the House for the further details of the Bill, points out (pp. 58 and 59) the different provisions which ought to be kept in view in making these alterations in the law with regard to personal diligence, and I trust that the procedure recommended by them, and adopted in the Bill, that every advantage will be secured, while much expense will be saved. The saving of expense in pursuing steps of diligence is, in the first instance, an advantage to the creditor, but ultimately to the debtor, and it would be very mistaken humanity to preserve ancient, cumbrous, and expensive modes of procedure, while all their advantages can be obtained by those which are more simple and less expensive. I have brought this, which is one of the most important parts of the change, first under the view of the House. I am sure it is one in which they will take a very strong interest; but I ought to mention, that this Bill contains, in the outset, various provisions recommended by the Commissioners, where there is no sequestration. The criterions of not our bankruptcy will be the same in both Bills, but while the one Bill is exclusively confined to the provisions connected with sequestration, the other is intended to contain such provisions as may be necessary for cases of insolvency whether there is sequestration, applied for or not. In order to make a person notour bankrupt, it was necessary, in certain cases, to im- 917 prison him, or that he should take refuge in a sanctuary. The proposed Bill will obtain the same object without the necessity of imprisonment, by declaring the person notour bankrupt, and by establishing a register of persons so declared notour bankrupts, the object will be attained, not only in a more humane manner, but will enable all persons more easily to ascertain whether an act of bankruptcy has taken place. The other provisions of this Bill relate to the execution of the law against the effects of the debtor, by arresting the debts due to him—by seizing his goods, or poinding, as it is termed in the law of Scotland—by inhibition, which is a legal proceeding by which persons may be prevented from disposing of their heritable property to the injury of the creditor applying for that proceeding. There are, also, regulations for diminishing the expense of the process of adjudication, by which creditors are enabled to appropriate the real property of their debtors for payment of their debts, and the judicial sale which takes place in consequence; and there are also regulations relative to sales made in virtue of powers to that effect. In the last place, the Bill regulates the process of poinding on the ground by which the proceeds of landed property are attached for recovery of debts which affect the land. As the first and second Reports of the Law Commissioners contain a very full exposition, both of the existing law and of the proposed improvements, I refrain from entering so minutely into the details as I should otherwise have felt it my duty to do. I had at one time, framed separate Bills for each of the points which are brought under the consideration of the House in this Bill, but, on further reflection, I have become satisfied that it would be more convenient for the House, and equally so to the country, to unite all the provisions with regard to bankruptcy and execution, at the instance of creditors, either against the person or against the estate of debtors, into one Bill. Great pains have been taken to make the provisions as short, clear, and simple as possible; and I trust this Bill may be read, and easily understood, by persons who are not lawyers. I believe I may add, on the part of the Scotch representatives as well as myself, that they will feel indebted to those English or Irish Members who will direct their attention to the subject. In the reports to which I have already referred, they will meet with every explanation which they way require, and they 918 may, perhaps, in watching over, and superintending, a system different from their own, make observations and receive suggestions which they will find applicable to their own institutions. The next Bill is one for regulating the process of cessio bonorum. A Bill embracing a part of this object was before the House last Session. According to the law of Scotland, a debtor is entitled to be freed from imprisonment on surrendering to his creditors all his effects, but this procedure was confined to the Court of Session. Such cases usually turn on the question, whether the conduct of the debtor has been fraudulent, and it is often found very difficult, and always very expensive, to carry on such investigations in the Court of Session. It appeared to me desirable to place in one Bill all the regulations with regard to this process, whether it should take place before the Court of Session or before the Sheriff Court. The Bill to Amend the Law of Scotland as to Erasures in Instruments of Sasine, passed through this House last Session, and I again introduce it, with some alterations, to obviate objections which were made to it, and with the omission of a clause which was objected to in this House, restricting the operation of the Bill to cases in which suits had commenced in the Court of Session before a certain date. I believe the feeling in the country for the necessity of such a Bill, in order to restore confidence to the landed rights in Scotland, has increased instead of diminishing; for further inquiries have produced, as I suspected they would do, additional instances of defects of this nature. Conveyancers did not consider, in general, that such erasures in instruments of that description were fatal. Estates were frequently purchased and debts contracted where the debts were liable to those objections. According to the present law of Scotland, a person who has the misfortune to be the issue of parents not legally married, cannot, unless he have lawful children of his own body, dispose of his personal or moveable estate, as it is termed by the law of Scotland, though it has been acquired by his own industry. He may, if he happens to possess a landed estate of any amount, convey it in the same manner as any other person may do. It is not an easy matter to account for this peculiarity in the law of Scotland, and it is a singular circumstance, that, in the time of Sir Thomas Craig, who died in 1608, it does not appear to have existed, according to various passages in his learned work "De Fendis," 919 I think there can be but one opinion, that this anomaly in our law, which has neither the rules of the civil law nor remote antiquity to recommend it, should at once be removed, and that unfortunate persons who are themselves perfectly innocent, should have one of the strongest motives to acquire property, that of being able to leave it to their friends. At present it only adds a further stigma to spurious birth, and, if it operate at all, makes them less prudent and industrious. This is a matter in which the Crown has a direct interest, as the moveable property of all such persons devolves to the Crown, which it will not do if they shall have made a last will. I have, however, been assured by my hon. Friend, the Chancellor of the Exchequer, that the consent of the Crown will be given to this measure. By the 1st. of Wm., IV. cap. 69, it was declared that the offices of Judges of the Commissary Court at Edinburgh should not be filled up, and that as "soon as vacancies should occur in the whole of such offices, the said Court shall be entirely abolished, and the powers and jurisdiction of the Court transferred to the Sheriff of the county of Edinburgh." I have been informed that this enactment was at the time intended to be superseded by an Act relieving the Commissaries of the remaining duties of taking proofs, and that they received an assurance to that effect. During the five years that have elapsed two of the Judges, one of whom held the office for thirty-one years, have been rendered incapable of performing the duties, and very great inconvenience and expense arises to the public from there having been no means devised for having proofs taken at a distance from Edinburgh. I do not, therefore, anticipate that any objection will be made to this Bill.
§ Leave given and the Bill ordered to be brought in.