§ Mr. R. Scott
moved the Second Reading of this Bill. He was at a loss to discover why the Ministry should now oppose itself to a clause of the measure, of which it had sanctioned the introduction in the Ecclesiastical Courts Bill. The object of the clause in question was to facilitate the transfer of landed property bequeathed under will when the probate was granted in a Diocesan, while it ought to have emanated from a Prerogative Court. He could not conceive what possible disadvantage could arise from enacting this Bill. To prove the necessity of some such measure being introduced, the hon. Gentleman cited the case of a will made in 1755, under which an assignment for a small amount had been twice transferred; but some sharp attorney having discovered that probate in the Prerogative Court was necessary, the party entitled to the property in 1844 had to come to London, to take out probate. He hoped the Government would, at all events, allow the Bill to go into Committee.
The Solicitor General
did not feel at all hampered in his resistance to this Bill, by having to admit that a clause of the nature alluded to was in a Government Bill of two years ago on Ecclesiastical Courts. Had he been aware that such a clause was in the Bill at that period, he should have opposed it. The first question to be asked with regard to such a measure was, was there any necessity for it? Next, did the members of the profession generally call for it? The hon. and learned Gentleman 243 had presented four petitions from Wolverhampton, Dudley, Birmingham, and Stourbridge, in favour of this Bill. Every one of these petitions was in the same handwriting, and expressed in precisely the same language. The plain inference was, that they were the work of one individual. There was no recommendation of any such measure in the Report of the Real Property Commissioners. What was the amount of injury done in the present state of the law? Was the title rendered invalid in the case of omission? No; all the party had to do, was to take out administration de bonis non in the case of probate, or a prerogative administration in the cases of an intestate. The effect of the change proposed, however, would be to render administration, however imperfectly made, valid, and to oust, in many cases, mortgagees and others, from property to which they were fairly entitled. He should move that the Bill be read a second time that day six months.
§ Mr. Granger
said, it was extraordinary that the Solicitor General did not object to this clause in the Government Bill. [The Solicitor General: I was not then Solicitor General.] But the hon. and learned Gentleman was a constant supporter of the Government, and ought surely to have exercised some vigilance as to such measures when introduced by Government. The evils to be removed were admitted; and he thought the Bill should be allowed to go into Committee, if no stronger reasons than those stated could be adduced.
§ Mr. Roebuck
This Bill was surely retrospective; and from the petitions all coming from one party, the suspicion was raised that it was brought in for a specific object. It was no answer to say that the same clause was in a Government Bill two years ago, for the parties now at work might have smuggled it into that measure.
Mr. T. B. C. Smith
said, if the measure was merely to decrease expense, he should not oppose it. But under the guise of a public measure, it was evidently brought in to meet some particular case. 244 Besides diocesan and prerogative administrators, there were those who took out administration because they were parties in an equity suit. Now, it was a common practice for the plaintiff's attorney in the latter case, in Ireland, to send his clerk to take out administration; and if this Bill passed, such an administration would be rendered valid, and a large amount of property swept away from those who were justly entitled to it. He admitted that the hon. and learned Gentleman had made out a case for an alteration of the law in the instance of the will in 1775, and if his Bill was confined to that case he should not oppose it; but the Bill, as it now stood, might be made an instrument for shutting out mortgagees and others from their just rights.
§ Mr. Sergeant Murphy
The Government had objected to this Bill as retrospective. Were they prepared with a prospective measure on the subject? Why not compromise the matter, and, having read the Bill a second time, give the attorneys and profession an opportunity of considering it? As to the objection that such a measure was not recommended by the Real Property Commissioners, it was plain they contemplated doing away with assignments altogether; and, therefore, such a recommendation as that referred to was unnecessary. The hon. and learned Attorney General for Ireland had admitted there was a case for legislation in the instance cited by the hon. and learned Member (Mr. Scott). If they went into the consideration of the Bill, might not other such cases be supplied?
§ Sir James Graham
would feel himself bound to vote against the second reading of the Bill if pressed to a division, as a measure retractive in its character, general in its operation, and introduced to meet a special case.
§ The House divided on the Question, that the word "now" stand part of the Question:—Ayes 27; Noes 30: Majority 3.
§ Second reading put off for six months.