HC Deb 13 July 1849 vol 107 cc325-32

Order for the Second Reading read.

The SOLICITOR GENERAL moved the Second Reading of this Bill, which was a measure in furtherance of the objects contemplated in the Incumbered Estates Bill. It would be an imperfect course to free estates from their incumbrances unless you prevented, as nearly as possible, the recurrence of such incumbrances, and this was the purpose of the present Bill, the scheme of which was threefold: the first object was to prevent the assignability of judgments in future; the second to effect by means of the Bill judgments henceforward from becoming a charge upon the land, except in cases where the land should be in the hands of the sheriff; and the third object he hoped to attain was to prevent receivers from being appointed over estates by the holders of judgments under a certain amount. With respect to the first provision of the Bill, he might allege as a reason for assenting to it the fact that judgments of 100 years' date were at present in force against landholders, and these judgments under the present system constituted vested rights over the rentals, to the prejudice of persons actually in possession of the land. So that, when the possessor wished to sell his estate to pay off the incumbrances, it was not only necessary to hunt out all those who had any collateral right of heirship to the property, but also all the holders of judgments; and the expense of doing this, which was enormous, fell wholly on the landowner, besides which, the difficulty attending the search for claimants operated as a bar to a transfer of the land, and prevented its sale. The Bill was not intended to deal with existing judgments; all it was intended to effect was to prevent a recurrence of the evils at present existing in Ireland, and to prevent in future judgments from being assigned after a stated period. In short, the object of the Bill was to assimilate land in Ireland to stock, and to create difficulties in the way of henceforward incumbering landed estates in Ireland. The hon. Member for Middlesex had, with the consent and approval of the Government, moved for the appointment of a Select Committee, for the purpose of inquiring into the system of appointing receivers to estates in Ireland. He (the Solicitor General) had postponed the introduction of the present measure until the Committee had reported, and now that the highly interesting and valuable report made by the Committee was on the table of the House, he had taken the earliest opportunity of bringing forward the measure which he had framed for the purpose of remedying the existing evils. The Committee differed from him in some respects. He had wished to put an end to the whole system of borrowing money on judgments in Ireland, as whilst it existed he thought it was impossible for the cultivation of the land to be in a thriving condition. The Committee had thought it dangerous to put a sudden end to the system of borrow- ing money on the security of warrants of attorney secured on the land; and as he was not so well acquainted with the working of the system as the hon. Members on the Committee necessarily were, he had felt disposed to bow to their decision; and thinking it of the utmost importance that the Bill should pass during the present Session, he had consented to limit the operation of the measure to judgments not exceeding 100l., as was suggested by the Committee, thinking it likely that at some future period the necessity would be seen for putting a total stop to the practice of raising money by means of judgments on the security of land, as well in Ireland as in England, for he was well satisfied that considerable evils had arisen under the Judgment Act recently passed for England. He had felt the importance of not alarming the people of Ireland as to matters of this description, and had therefore modified his own views. He had had the advantage on these points of the advice and opinion of the hon. and learned Member for the University of Dublin, whoso candour and intelligence he felt it to be his duty to state had raised him to a most advantageous position in that House, and he had given way to that hon. Gentleman in a manner which he had not originally intended or contemplated doing. He was happy to say that the Committee were unanimously of opinion that the system of assignable judgments should not any longer be permitted to continue, and this was a very important feature of the present Bill. With respect to the receivers he intended to confine the operation of the Bill to judgment debts not less than 150l. in amount, and no judgment should henceforward be deemed a charge upon the land, unless the land was in the hands of the sheriff. But as it was possible, in contemplation of the effects of the Bill, that there might be a general rush for entering up judgment at the opening of the next term in Dublin, he should restrict the operation of all judgments to those which were already completed previous to the passing of the Bill. Now, with respect to the receiverships over land in Ireland he felt it necessary to observe that the rentals thus collected amounted to 2,000,000l. per annum there, whilst by a return which he had obtained of the amount passing through receivers' hands in England, as well of leasehold as of real property, he found, as nearly as could be stated, that it was 58,58l.; so that if this return was a correct one, the amount of property passing through the hands of Chancery receivers in England was one-fourth only of that so received in Ireland; whereas the rental of England was about some five times as great as that of Ireland. The present Bill had necessarily been delayed until the Incumbered Estates Bill stood in a position where it was likely to become law; for he had considered that, inasmuch as that Bill proposed to give an immediate and stringent remedy to the holders of judgment debts, and of other claims against landed proprietors in Ireland, it was necessary that some restraint should be put upon that class of creditors, to prevent them proceeding harshly and cruelly against their debtors. If the House should agree in the views he had stated, he proposed to have the Bill read a second time, and then, at the earliest opportunity, to go into Committee pro formâ on it for the purpose of introducing the amendments which he had framed in accordance with the views of the Committee; and then, having done so, he would pass it through Committee in the usual form, and send it to the Upper House as soon as possible. He begged, therefore, to move that the Bill be read a second time.


said, he did not rise to offer any opposition to the course proposed to be taken by the hon. and learned Solicitor General, but rather to express his approbation of the candid manner in which he had explained his views, and the consideration he had shown towards the recommendations of the Committee. But as the subject was an extremely important one, as well as difficult to deal with, and bore much upon property in Ireland, he wished briefly to explain to the House the grounds upon which the Committee had come to the conclusions at which they had arrived, and which he believed if acted on with firmness and fairness, would attain all the objects which the Government proposed to accomplish. There could be no doubt that, inasmuch as recent events had forced the Legislature to contemplate a rearrangement of the present system of property in Ireland, they should take care to prevent, as much as legislation could do it, a recurrence of those evils which unhappily recent events in Ireland had shown them to be in existence; neither ought they to confirm any law which had mainly contributed to such a state of things. Considering the peculiar circumstances of the Irish people, and looking at the temptation which the assignability of judgments held out to an improvident raising of money, he had come to the conclusion that it would be a wise course to repeal the law which permitted such a practice, and thereby endeavour to put the state of things in Ireland on a more just and safe footing. The Bill of the learned Solicitor General was one for qualifying the rights of judgment creditors. It was right in framing such a measure as that to distinguish between two classes of creditors. There was one class to be considered in the light of the money lenders—and the other the creditors who had obtained judgments on a fair bonâ fide demand. Now, in legislating upon that matter, he maintained they ought not to go one step beyond what was necessary for the public exigency. Both classes of judgments were assignable, that of the bonâ fide creditor, and that of the money lender on a warrant of attorney, and it was necessary to bear in mind the distinction between them. For his own part, he considered that it was a matter contrary to all sound public policy to allow a security like a judgment to be made the means of raising money. Sir Edward Sugden, however, was of a different opinion, and did not consider it wrong to do so. The present Master of the Rolls in Ireland, however, had stated to the Committee, that, looking at the present state of society in Ireland, he thought it a matter of political and public importance to make judgments a very doubtful security for raising money, and considered that their assignability ought to be got rid of. Sir Edward Sugden, indeed, thought it would be an unwise thing to make so great a change at once, but recommended as a first step to limit the amount of judgments under which receivers could be appointed to 1,50l. The Committee, however, had been unanimous in the conclusion to which they had come on this one point—namely, that assignability of judgments ought not to be allowed. In any legislation of that description, they should always endeavour to enlist on their side the good sense and right feeling of the country with which they proposed to deal. In his opinion they were clearly bound to qualify the rights of judgment creditors, if those rights should be found to operate injuriously to the best interests of society. The hon. and learned Gentleman then quoted the evidence of the Master of the Rolls in Ireland, and other legal authorities, for the purpose of showing the evils which resulted from the pre- sent system of assigning judgments; and afterwards proceeded to say, that he believed that measure would operate very beneficially when taken in conjunction with an improvement in the system of receivers, and a simplification of the proceedings in the Court of Chancery itself. He thought, that after having accomplished such changes, and after having effected a consolidation and a simplification of the laws which regulated the relations between landlords and tenants, the Legislature would have done all that it could do to improve the social condition of Ireland; and the country might then, he believed, be left to itself. He readily admitted that they ought to legislate for the protection of the rights of bonâ fide judgment creditors, and that they ought to give those creditors the same rights against property in Ireland which were possessed by the same class in England. But he also thought that they ought not to legislate exclusively with a view to the interests of capitalists, who might be disposed to purchase lands in Ireland. Before he sat down, he felt bound to express his acknowledgments to the learned Solicitor General, for the kindness with which he had received every suggestion he (Mr. Napier) had made to him; and he should farther say, that he would at all times be ready to give every assistance in his power towards ensuring the success of any measure which he could think calculated to promote the improvement of that country. He confessed, that, if they were all cordially and frankly to unite for that purpose, he should not despair of seeing Ireland raised to a state of real and permanent prosperity. That great and remedial visitation—for such he should call it, in spite of all the calamities with which it had been accompanied—that visitation with which they had of late years had to contend, might then, he believed, be made an instrument for effecting the regeneration of Ireland, and elevating her to the rank to which he was sure it was the wish of every Member of that House—whether Englishman or Irishman—that she should attain; and thus might they see the strength of the united kingdom and the general prosperity of the empire largely increased.


said, he should only aim at making a few cursory remarks upon this Bill. He agreed in the general principles laid down by the Solicitor General, but regretted that those principles were not reflected in the Bill itself. He admitted that the Bill prepared by the Master of the Rolls in Ireland would diminish greatly the delay and expenditure incidental to the prosecution of creditor suits, and he felt that some such practical measure was loudly called for. With regard to the suggestions of his hon. and learned Friend, as to the simplification of the proceedings of the Court of Chancery, he thought that unless some speedy and proper alterations were made, it would be impossible to afford any permanent relief to the immense amount of business which now lay before the court. The Incumbered Estates Bill, now in progress, was, he must admit, a step in the right direction. As the Bill stood, it certainly did not go to realise the objects stated to-day by the Solicitor General. The power of assigning judgments had existed in Ireland for more than a century. The real evil of a judgment as a security for money was, not only that it attached as a lien to the particular property, but that it overrode all the real and personal property possessed by the borrower at the time he confessed the judgment. It also affected the property which the borrower might afterwards acquire. It was idle to talk of increasing the facilities for the sale of land in Ireland, unless at the same time they conferred upon the lender of money on landed security in that country the fullest possible remedy for recovering his money. This seemed to be a retrograde movement in the wrong direction. By the operation of this Bill, the owner of the land confessed his judgment was hemmed in between two evils, in the shape of the Incumbered Estates Bill, and the Judgment Security Bill. If he wanted to sell the estate, the Incumbered Estates Bill would operate to prevent him; and if, on the other hand, he wished to dispose of the judgment, the Judgment Security Bill would not permit of his doing so, though a capitalist were at hand ready to advance the money. He thought it most desirable that a judgment-creditor should not have power of appointing a Chancery receiver over an estate. With reference to that part of the Bill which went to revive the vicious system of elegits, he thought that system was quite as objectionable as the custodien system. Had the Solicitor General thought of the immense sea of litigation which would arise from the complex system of elegits which he sought to revive? He thought the Government should not submit to the House measures of this isolated and puny character, but others of a massive and general nature with respect to real property. For instance, it was impossible to do any thing in Ireland without a system of registration of births, deaths, and marriages, many of the evils in respect of real property arising out of this defect. The facilities that existed in Scotland for the transfer of real property was the secret of the success of that country in this respect.


had been anxious to offer some observations to the House on a measure which, in connexion with the Incumbered Estates Bill, appeared to be of vital importance to the circumstances of Ireland; but time now forbad; and as he believed there was no difference of opinion as to the second reading of the Bill, he suggested that that stage should now be taken without further delay, in order to allow the Solicitor General to pass the Bill through Committee pro formâ When the Bill was recommitted, there would be an opportunity of discussing all the details of the question, and hon. Members would then have an opportunity of reading the report of that Committee on which he had had the honour of serving—a report which was not voluminous but specific, and contained a well-reasoned argumentation; also the important evidence of Sir E. Sugden and the Master of the Rolls in Ireland. Before he sat down he would inquire whether the Solicitor General, in fixing the limit of 150l. as the lowest amount of debt justifying the appointment of a receiver, was prepared or not to adopt the recommendation of the Committee, that in all cases above that limit, where a creditor should petition the court for a receiver, the period of at least one year should be given from the date of the judgment before the appointment of a receiver? He agreed with the learned Solicitor General that the present Bill must be taken in conjunction with the important measure relating to incumbered estates, and he suggested that the House should have the opportunity of discussing an important alteration made by the Lords in the latter measure, and, if possible, coming to an agreement with the Lords upon that Amendment, before considering the present Bill in its amended state.

Bill read a Second Time, and passed through Committee pro formâ.