§ Order for Second Reading read.
§ Motion made and Question proposed, "That the Bill be now read a second time."
§ MR. VANCE
in rising to move that the Bill be read a second time that day six months, said, that the measure affected not only merchants and persons connected with commerce, but professional men, country gentlemen, and all who in any way might become parties to a bill of exchange. He believed he should be able to show that the present measure would interfere with the general circulation of bills of exchange, which were the lifeblood of commerce; and also that it was calculated to prevent the fair division of the estates of insolvent debtors and interfere with the jurisdiction of the Irish courts; and that while on the one hand the provisions of the Bill might be used by the fraudulent debtor for the most dishonest purposes, they might on the other be resorted to as a measure of oppression against the willing and honest man. The Bill enacted that a registration office should be established for dishonoured bills of exchange, 1250 and that on notice of dishonour being served upon the persons who were parties to them immediate execution might, with leave of the judge, be issued against their effects. Now, by recent law reforms, judgment could be got in an undefended action upon a simple contract debt, in eight days; but in order to prevent undue preference, execution upon such judgment was stayed eight days more—making in the whole sixteen days—so that in the meantime a fiat in bankruptcy could be sued out, with a view to the fair division of the estate among the general body of the creditors. If however, the present Bill were passed, the holders of bills of exchange would have great advantages over other creditors, and there would be no kind of security against fraudulent preference. It had never been contended that a bill of exchange was anything more than a simple contract, and it was so stated by Mr. Chitty, in his work on Bills of Exchange, who defined it to be a simple contract, affected by the Statute of Limitations, and stated that it was used among merchants to avoid the necessity of transmitting money. Nothing more plainly proved, that this was the view the law took, than the fact that foreign bills of exchange may be accepted by a separate document, and not on the face of the bill itself. The 25th clause of this bill interfered with the jurisdiction of the Irish courts. It enabled a creditor who happened to hold a bill of exchange to which any person in Ireland was a party, whether as drawer, acceptor or endorser, to serve such party with a notice issued from a court in this county, and eventually to sue out execution against him. Hitherto the Irish traders had been very properly sued in Ireland, and this was the first time that the barrier between the two countries, with respect to legal arrangements, had been attempted to be broken down. Another clause of the bill inflicted great hardship on Irish debtors, by rendering it necessary for persons living at a distance to give security for costs or lodge the entire amount of the debt in the court, which in many cases might be attended with great inconvenience. A great deal had been said about frivolous defences being made to actions on bills of exchange. He assured the House that after having been for many years engaged in commercial transactions, and having had a great number of bills passed through his hands, he had never known a case, in which the bill of exchange was the result of a fair 1251 mercantile transaction, where a frivolous defence had been made; though it was likely enough that in the case of Jew bill-discounters, who gave nothing like full value for the bills, any sort of defence might be set up. He had analysed the petitions in favour of this Bill, and found nearly all of them were from Scotland, where a somewhat similar system of law had prevailed for many years; and he must say he saw no grounds for endeavouring to import Scotch law into this country;—they had avowedly a bad bankruptcy law, which the Lord Advocate had given notice of a Bill to amend and assimilate to the English practice. This measure was the production, he believed, of a noble Lord in the other House, who had not been at all fortunate in his commercial reforms, as instanced in the complete failure of the bankruptcy law introduced by him; and, considering that the present would be unproductive of every kind of benefit, he should oppose it to the fullest extent of his power.
§ MR. MUNTZ
said, that he should have great pleasure in seconding the Motion of the hon. Member for Dublin. This was the same Bill that had been postponed last year for very obvious reasons; and no alteration had been made in the measure since that time; he had taken great pains in inquiring from all persons connected with commercial operations what their opinions were as to its character and effect; and the universal reply he had received was, that there was not the slightest necessity for the measure, the law as it stood at present being amply sufficient for all purposes of justice, and that a great deal more evil would be done to society by this measure than by letting the law remain as it is. Could anybody doubt that if the present measure passed, great injustice would be done to the endorser of bills? He would admit that the acceptor and drawer of a bill were bound to take care that it was duly provided for, but the position of an endorser was different. A man engaged in large transactions might endorse bills to the extent of 50,000l. or upwards, all of a bonâ fide character, which in consequence of a great pressure or panic might be returned on his hands in a few days, and, although perfectly solvent at the time, he might, if the holders were allowed to turn round on him, in eight days be as effectually ruined as if he did not possess a farthing; for, when a man was forced into the Bankruptcy Court, 1252 however great his assets might be, and however large the surplus, the estate was so frittered away, that on a division of the assets they were sure to be insufficient to meet all the claims. Why should the holder of a bill of exchange have this preference? What was it but an acknowledgment of a debt that was not yet due? It was said that there were frivolous and vexatious defences to bills; so there might be, but were there no frivolous and vexatious defences to actions of another character? If they wished to meet that evil, the better way would be to deal with it in a separate form. At present, claimants upon bills possessed two great advantages—first the easy proof of the debt, and, secondly, that it bore interest; and he agreed with his hon. Friend that to pass this measure would be to give the greatest facilities to the fraudulent debtor in preventing the fair division of his estate among his creditors. This was a measure which arose from excessive legislation by the legal profession. No persons, he believed, knew so little of the commerce of the country and of the principles by which it was regulated as those who were engaged in the legal profession. Though their vocation might be to recover debts, the Lord protect the nation against attempts at commercial legislation by them! He had pointed out to the noble Lord who originated this measure the effect it would produce on endorsers, and the reply he received was, that it worked well in Scotland; but he agreed with his hon. Friend on the opposite side that they did not want Scotch law. There were many bad as well as good Scotch laws, and he doubted whether, in the present case, the people of Scotland, in order to obtain a little more security for bills, did not sacrifice ten times the amount by the consequent restriction of commercial operations. If they must have an importation from Scotland he would recommend hon. Members to turn their attention to the Scotch banking system, which he admitted would, if introduced into this country, palliate many difficulties.
§ Amendment proposed, to leave out the word "now" and at the end of the Question to add the words "upon this day Six Months."
§ SIR ERSKINE PERRY
said, that this measure was not the conception of a legal mind, but had originated solely with persons connected with commerce; and the two hon. Members who had just addressed the House laboured under a misconception 1253 in supposing that commercial men throughout the country were opposed to this measure, for the fact was that, with the exception of Birmingham, there was not a single commercial town of importance in the country which had not petitioned the House in its favour. He held in his hand a list of those towns, which, with the permission of the House, he would read for the information of hon. Members. In that list were Liverpool, Leeds, Leicester, Bristol, Carlisle, Nottingham, Worcester, Glasgow, Bath, London, Huddersfield, Bradford, Cork, Belfast, Southampton, Edinburgh, Dundee, Manchester, Devonport, and Gateshead; altogether there were twenty-eight petitions from those places, and it must be remembered that those petitions were not only from merchants and tradesmen, but from the representatives of commercial men, the Chambers of Commerce. In the petition presented last year by the noble Lord the Member for London in favour of the measure were the names of the most respectable firms in the metropolis, and, he was at a loss therefore to know what hon. Members could mean by stating that the commercial men of the country were opposed to the measure. He would not detain the House by demonstrating the soundness of the principle upon which the Bill was founded, but would merely remark that they were principles which had guided our law reformers during many years past. It was singular how much the writings of one man, Mr. Bentham, who had been described as the first philosophic writer of the last century, had contributed to the introduction of those reforms. At the time he wrote, what a wild jungle was the field of English law, how overgrown with weeds, how encumbered with nuisances, of every description, and how much had since been done in consequence of the adoption of his views. Two general principles were laid down by him—namely, that the foundation of all rules of law should be their tendency to promote the ends of justice; and that, in order to enable suitors to terminate their legal difficulties in the most speedy and economical manner, every facility ought to be granted to enable them to come before the judge at the earliest possible period of the suit before expenses were incurred or the passions of the parties inflamed. Applying these principles to the present Bill, he would inquire what was the existing state of the law? It was obvious that all the cases that came 1254 before the courts of law were divisible into two great classes—the first class comprehended those in which some legal difficulty was to be settled or principle established; and the second, where suitors were seeking to enforce a remedy against a consenting party to a contract, who was unwilling to perform it. It was obvious that these two classes of cases required very different modes of proceeding; in the first class of cases every opportunity should be given to bring forward the facts, and apply the legal arguments to them, which was necessarily a slow process; but, in the second, when no dispute of law or fact occurred, the claim ought to be presented before the judge at the earliest possible period. Now, how did the law stand with regard to bills of exchange? In the case of a bill of exchange where there was no difficulty about proof, but payment of which was only withheld because it was inconvenient to the debtor, what did the law allow him to do? It allowed him, in the first place, to appear to the action and put in all sorts of false and fraudulent pleas. The only effect of such proceedings was to gain time, for when the cases came on for hearing, judgment passed for the plaintiff in one second. The Chief Justice of the Queen's Bench said that he had had as many as sixteen of such cases to dispose of in one morning. The average cost of these undefended actions was 12l.; and if the defendant were insolvent, these costs were entirely thrown upon the plaintiff. It was clear that some remedy ought to be devised for such a state of things. The best arguments against the Bill proceeded from the Incorporated Law Society last year, but so strong was the case in favour of the Bill, that they had this year abandoned their opposition, and had brought forward another Bill, the preamble of which contained the main principle upon which the present law was founded. Last year the opposition to the Bill proceeded from some commercial men in the House, but nothing could be more weak than the arguments then used. It was said to be hard upon the debtor to be called upon to pay at so early a period after the debt was contracted, but that would be an unsound principle for the House to recognise, for it was of the first consequence that remedies to enforce contracts should be available in the earliest, simplest, and most speedy possible manner. His own experience in the administration of the law in a Court where he had the power to grant terms to 1255 defendants had convinced him that leniency to the debtor was unwise and unsound, even in the interest of the debtor himself. It was not in the nature of business men to be too hard upon their debtors. On the contrary, it was the interest of men engaged in business affairs to deal with each other on liberal terms, and the man who had the character of selling up his debtors too harshly would soon be known and avoided. Another argument against the Bill was used by his hon. Friend the Member for Birmingham (Mr. Muntz), who characterised this Bill as a job, and who, with his fine stature, stentorian voice, and the oaken cudgel which he usually carried when he addressed the House, used his argumentum baculinum with so much power and vigour that his feeble denial that there was any ground for such an assertion was of little avail. But as this was a small assembly, and as it was now early in the day, and as we were not in the piping month of August, as when this Bill was discussed last year, he would venture to say, in opposition to his hon. Friend, that he could not trace the least suspicion of a job in any of the clauses of this Bill. He would say for himself, that he was as much averse to a job as any Member of that House, and having once had judicial patronage of his own, his assertion might be tested by experience. There was in the Bill of last year a clause providing a salary for the officers to be appointed under the measure. The right hon. Member for Oxfordshire (Mr. Henley) pointed out the undesirableness of payment by fees; and accordingly he (Sir Erskine Perry) had withdrawn that clause, and had inserted another, which was the only one for which he was responsible. By that clause, following the legislation of the last few years, he had taken the patronage from the judges, to whom it had at first been proposed to give it, and had placed it in the hands of the Ministers of the Crown who might be called upon at any time in Parliament to account for any improper exercise of that patronage. On the other hand, the judges of the land had functions of so solemn a nature to perform, that they ought never to be placed in a position in which their names might be called in question in that House. The Bill of last Session passed through its earlier stage by a majority of nearly two to one, but it was postponed until so late a period of the Session that in deference to the impatience of the House, it was 1256 determined to withdraw the Bill. This Session the Bill had again gone through the ordeal of the House of Lords, and the interval had enabled the commercial interests in the provinces to bear their testimony to its value. Very strong testimony n favour of the Bill was also borne by the Commission now sitting for assimilating the Law of England and Scotland to one commercial form. That Commission approved most warmly of the principle of the measure. He thought the other Bill before the House a good one; but this, which had come down from the House of Lords, he regarded as the best. The principle of the two measures was exactly the same, namely, to do away with fictitious and fraudulent defences, and to do speedy justice to the holders of dishonoured bills. He should not at all object that the two Bills should be referred to a Select Committee, and he should be glad to hear that this proposal had been made by the Government.
§ MR. GURNEY
said he did not think a sufficient case had been made out for the proposed change of the law. So far as his own experience went he had never known an instance in which the loss upon bills of exchange had been increased in consequence of the delay entailed by the present state of the law. There were certain cases in which the remedy was worse than the disease, and this was one. The disease was the inconvenience of a few creditors; the remedy would be the ruin of a multitude of debtors. He differed from the hon. Gentleman in thinking that every alteration in the law that enabled creditors to obtain speedier remedy against the debtor, was, for that reason, an improvement upon the law. The debtor ought to have a fair and reasonable time given him to recover from temporary and accidental embarrassment; and, if he should fail, then the law ought to provide that his property should be equally divided among all his creditors. But it seemed to him that the present bill was utterly deficient in both these respects. The bill gave to the creditor who held an overdue bill of exchange an enormous priority of advantage as against the creditors on open accounts—a priority that was not based either in justice or expediency. But it was assumed in this bill that the creditor upon a bill of exchange, being a formal document, ought to have priority, and that the debtor admitted on the face of the bill that he was indebted to a certain amount, and 1257 that he engaged to pay it on a certain day. But the same thing might be said if a man wrote a check which was dishonoured by his banker, and it would be difficult to show why the holder of an unpaid check ought not to have the same remedy as the holder of the bill of exchange. The holder of a bond, too, would be in many cases placed in an inferior position to that of the holder of a bill of exchange—for no reason that he could see. That was not consistent. Again it was impossible not to see that the Bill would afford the greatest possible facilities for fraudulent preferences. A man might say to one of his creditors, "I am in difficulties—draw a bill on me at a week," and the creditor who had received the hint would get his debt in full at the expense of the rest. He believed that it was the duty of that House, in providing justice for creditors, not to overlook all considerations of mercy to the debtor. He did not plead for the insolvent debtor, for, if a man were insolvent the sooner he stopped payment the better; and still less did he plead for the fraudulent debtor, for it was a blot upon our jurisprudence that the fraudulent debtor was so seldom convicted and so lightly punished: but he did wish to say a word on behalf of the honest, industrious, and frugal tradesman, who might be unable, from an accidental slackness in his month's receipts, to meet his acceptances for goods purchased, and which he calculated upon meeting from the month's sale of goods. Such bills were given among all classes of tradesmen, and one class, the small retail shopkeepers in agricultural villages, generally made purchases by the acceptance of small bills of exchange. They had no margin of spare capital like larger traders, they depended upon the receipts in their shops, and if they failed to take the usual amount of cash they failed to meet their acceptance. It was said that the creditor and the debtor ought to be left to settle these matters between them; but these bills are not always in the hands of the drawer, for if he were in any strait he would have passed them into the hands of third parties. The drawer of a bill might often have an interest in keeping an acceptor upon his legs, but the accidental holder of a bill would have no such interest under the present bill, although he might have now, because the present state of the law operated as an inducement to leniency. But if this bill passed, it would offer a premium upon harshness; for, however kindly disposed 1258 the creditor might be, he would be compelled to avail himself of the powers given to him by the present bill, for fear that, if he did not, some other holder of a bill would step in and cut him out. The bill then would be a great hardship to persons engaged in trade; and it would also have a prejudicial operation upon the character of the bills of exchange in circulation in this country. A prudent man, with small means, would be very unwilling to sign a document which would render him liable to such serious results in case of any accidental negligence in taking it up, upon its arriving at maturity; and the bill would thus diminish the number of a class of bills which he thought ought net to be diminished—namely, those drawn on small country traders for goods bonâ fide supplied, and representing a class of credit from which it was undesirable this class of traders should be debarred. He considered, in short, that the effect of the bill would be materially to diminish the number of good bills and at the same time to increase the number of bad bills in the country. He should be the last to undervalue the expression of opinion of the large commercial bodies which had petitioned in favour of this bill, but they were mostly Chambers of Commerce and committees of the merchants and large and wealthier traders, and the smaller classes of tradesmen were very inadequately represented in these bodies. It was said that the measure had worked well in Scotland; but it had been in operation in that country for a great many years, and they all knew that time had a wonderful power in softening the harsher features of any measure. It might, therefore, work well in Scotland, and yet prove very injurious if introduced into England. The London merchants having dealings with Scotland had presented a petition, stating that persons selling goods in Scotland experienced great advantage in the collection of their debts from the state of the Scottish law, and that the law of Scotland was found in all respects to work extremely well. But the transactions of a country insensibly moulded themselves in the course of time to the state of the law, and too much stress must not be laid upon such a representation; and, moreover, the House ought to look at the other side of the picture—in other words, if the man who was turning the screw said he liked it, they ought to ask the man whose thumb was under the screw how he enjoyed the operation? For these reasons he must 1259 confess that he should be extremely glad to see these bills rejected, because, if they passed into law, the result, he believed, would be that, in the endeavour to check an imaginary inconvenience, a real and substantial injury would be inflicted.
§ MR. NAPIER
said, he must differ from the conclusions of the hon. Gentleman who had just sat down, and, as to the arguments used by him, he did not think that any reform had ever been carried without having a similar line of argument applied to it. He thought the House ought not lightly to reject a measure which had been found to work so well in Scotland—a country not likely to be led away by any crude or romantic notions on the subject of commerce; and when it was found that in a country like Scotland, after an experience of many years, a system similar to the one now proposed had proved most valuable and useful, he could not see why it should not be introduced into this country. A similar system existed in all the commercial countries of Europe, and it appeared to him that it ought to be the constant effort of the Legislature, first to assimilate the commercial law of the whole kingdom, and then to harmonise it with that of the whole commercial world. He did not think that the House ought, unless some weightier reason were given than had yet been advanced, to reject the present Bill. In his opinion, it would not be productive of the hardships which had been pointed out by the hon. Member for Lynn, for when men knew the provisions of the law they would comply with them and discharge their obligations, or else they would not enter so lightly into them. With regard to frivolous and fictitious defences, he had been startled to hear the hon. Member for Dublin (Mr. Vance) say that he had never heard of any. Why, it was almost always the case in trials concerning bills of exchange, and Lord Campbell in another place had stated that he had known many cases in which the money of the creditor had been wasted away in litigation by a fraudulent debtor. It was said, that the proposed change would give a preference to the holders of bills of exchange over other creditors; but, if it were so, a debt on a bill of exchange was different to an ordinary debt; a bill of exchange was an acknowledgment of a debt. A person who accepted a bill of exchange ought to be prepared at the proper time to discharge the obligation into which he had entered, and no law regarding such transactions 1260 was a wise one unless it was in harmony with moral obligations, and courts of justice ought not to be occupied with cases in which there was no bonâ fide defence. The hon. Member for Dublin had stated that a noble and learned Lord to whom reference had been made—he meant Lord Brougham—had not been very successful as a commercial reformer; but he could only say that scarcely any reform which had since been carried was not anticipated in the celebrated speech made by that noble and learned Lord in 1828. The noble Lord had even anticipated the present Bill, for he said—Whenever a strong presumption of right appears on the part of the plaintiff, the burden of disputing his claim should be thrown on the defendant. This I would extend to such cases as bills of exchange, bonds, mortgages, and other such securities. In those cases I think the plaintiff should be allowed to have his judgment upon due notice given, unless good cause be in the first instance shown to the contrary, and security given to prosecute a suit for setting the instrument aside."—[2 Hansard, xviii. 179.)As regarded small traders, and the injury which it was said would be inflicted on them, by the present Bill, that was entirely a matter for the creditors, and, even under the existing system, he did not think that a creditor on a bill of exchange would be willing to forego the power which was given him. As regarded collusion and fraud, he would be glad to see a mixed Commission of legal and commercial men appointed to inquire into that subject. It had been said that the petitions in favour of this Bill had been presented from Chambers of Commerce and persons engaged in large mercantile transactions, but surely they were the persons likely to be the best judges on the subject. So advantageous had a similar system, established by 12 Geo. III., c. 72, been in Scotland, that, in the 23 Geo. III., c. 18, it was stated—And whereas it hath been found by experience, that so much of the said Act made in the twelfth year of the reign of His present Majesty as relates to bills and promissory notes, hath been of great advantage to the trade and commerce of that part of Great Britain called Scotland; be it therefore enacted, that so much and such part of the said Act shall be, and the same is hereby made, perpetual.Well, then, if the system had worked so beneficially in Scotland, he could not see why it should not do so in England and Ireland; and that opinion was confirmed by Lord Campbell, who had thus expressed himself on the subject— 1261There could be no doubt that it was of immense importance that the commercial law of the three portions of the United Kingdom should be assimilated, and such an assimilation would introduce reforms which might lead to the most important commercial advantages. He was, perhaps, as competent to speak on this point as any of their Lordships, as he had the honour of presiding in Her Majesty's Court of Queen's Bench, where a great many causes were tried; and he assured the House that in very many the money of the creditor was wasted by the fraudulent debtor in litigation. Frequently, the acceptor of a bill of exchange, who, having had value received, and having failed to pay at the end of the period had an action brought against him, set up a number of fraudulent and unfounded defences, and when the day of trial came no real justification was attempted. At one single sitting of the Court, within the last four weeks, there were no less than sixteen actions on bills of exchange, in which the defendants did not attempt to set up the shadow of a shade of defence. He saw no reason, therefore, why they should not do as they did in Scotland, and in every other commercial country, and, indeed, in the time of Edward I., in this country."—[3 Hansard, cxxxv. 1367.]With regard to a clause altering the jurisdiction in Ireland, that he thought ought to receive consideration in committee; but he thought that if the House would assent to the present Bill it would be found most useful and beneficial.
§ MR. MITCHELL
said, he thought that the assertion of the hon. Member for Birmingham, that no petitions from mercantile men had been presented in favour of the principle of the present Bill was, to say the least, hazardous, and he had been much surprised at the arguments which he had employed. The hon. Member and the hon. Member for Lynn (Mr. Gurney) went upon the same principle; and as the hon. Member for Birmingham was in favour of inconvertible bank notes, so the hon. Member for Lynn was in favour of inconvertible bills of exchange. The whole argument of the case rested upon the principle, that when people had accepted bills of exchange they should be called upon to discharge the obligation into which they had entered. In his opinion, a bill of exchange was a most serious engagement, and he utterly repudiated the notion that open accounts and bills of exchange were to be placed upon the same footing, for the difference between them was of the broadest nature. It had been said that there ought to be a difference between bills of exchange and warrants of attorney, because, in the case of the latter, the attorney would explain the transaction; but ought that House to encourage persons to accept bills of exchange without know- 1262 ing their nature? With regard to endorsees, it was equally their business to consider their liability. In the case which had been referred to, of bills of exchange drawn against bills of lading, he could not see that the proposed change would be productive of hardship, because it was the duty of persons accepting such bills to reckon what they would have to pay when they arrived at maturity, without being dependent upon the arrival of the ship. The question was, whether a bill of exchange was not a selemn engagement differing from a stem of running accounts, and he had no hesitation in saying that the law had always held it to be so, as also did nine-tenths of the commercial men of this country; and, as to the objection of the hon. Member for Lynn as to fraudulent preferences, he was surprised the hon. Gentleman did not see that there was nothing in it. The mere fact of accepting a bill at a week's date, and then stopping payment, would be a clear case of fraud. As to hardships inflicted by the present Bill, he believed that in ninety-nine cases out of a 100, where a person was not able to meet his acceptance, but could show the holder of it that he could meet it if he had time, the bill would be renewed; but, if the man were really insolvent, then, the sooner it transpired the better. He earnestly hoped that the House would not be led away by even the high authority of the hon. Member for Birmingham, but that it would sanction a principle which would tend to purity the commercial atmosphere, and to prevent persons entering into engagements which they were unable to meet.
§ MR. SPOONER
thought that no answer had been given, or could possibly be given, to the most able speech of the hon. Member for Lynn (Mr. Gurney). The hon. Member for Bridport (Mr. Mitchell) had, indeed, endeavoured to show that the opponents of this Bill were not desirous of compelling persons to observe engagements into which they had entered. Now what he objected to was, that this measure gave to the holders of negotiable securities a power of oppressing their unfortunate debtors. He believed that the Bill would have a very harsh operation upon 1263 small traders, and a man who had good book debts might be driven into the bankruptcy court for not being able to fulfil an obligation into which he had entered under the belief that he would be able to meet it at a particular day. No doubt, those engaged in large commercial transactions approved of the Bill; but as it was for the advantage of the country that a system of small trade should be encouraged, he would put it to the House, was it consistent with that view that small tradesmen should be dealt with according to the harsh and severe principle dictated by this Bill? They might rest assured the Bill would have the effect of preventing prudent and cautious men from entering into those engagements at all. Much had been said of the petitions presented in favour of the Bill. Now, he happened to know that, as regarded the petition signed by the merchants of the City of London, it was so signed by many upon the representation that the Bill was to prevent fictitious defences being set up against the payment of bills of exchange; and by others, on the supposition that it was directed against accommodation bills; and he could state that many persons who had done so had changed their opinions. When the merchants, manufacturers, and small tradesmen of Birmingham had discovered what the probable effect of the Bill would be upon the retail trade of the country, they immediately resolved to petition against it. And as regarded the petition from Leeds, it merely went to this, that the petitioners prayed some steps would be taken to prevent the setting up of fictitious defences. The Bill was unnecessary, and because it was so, as had been justly observed, it was a job, inasmuch as an office was created under it which was not required. Not a single petition had been presented in favour of such a measure before the noble and learned Lord (Lord Brougham) brought forward his Bill, and he did not believe that any necessity had been felt for it. He could not see the slightest reason why they should give to the holders of bills of exchange advantages withheld from simple contract debts or obligations of any other description. During the long vacation, no doubt there was some delay in procuring judgment, on account of the difficulty of obtaining a Judge's order; but if gentlemen of the legal profession felt this evil so strongly, an obvious mode of settling the matter was to see if the long vacation could not be curtailed. He objected to the Bill because it was not wanted—because it 1264 gave to the arbitrary creditor a power of injuring the unfortunate debtor; because it did not merely confine its operations to the case of the fraudulent debtor, but applied equally to that of the unfortunate debtor; and because it would inflict much mischief upon small traders all over the country under pretence of curing an imaginary rather than an actual evil.
§ MR. BAINES
said, he must be allowed to advert to a petition presented by him little more than a month ago in favour of this Bill from the Leeds Chamber of Commerce, which was composed of persons who thoroughly understood the trade of this country, whether relating to large or to small operations. This petition had been entirely misdescribed by the hon. Member (Mr. Spooner.) The petitioners stated that they "earnestly desired the assimilation of the commercial laws of the three portions of the united kingdom, and they consider that, by passing Lord Brougham's Bill, Parliament would take an important step towards such assimilation. It would greatly simplify and economize the administration of the law in England; it is founded upon just and sound principles; it is in accordance with the experience of other commercial countries; it meets the views of the mercantile communities in general; and it has had the sanction of the highest legal authorities, and of both Houses of Parliament." With regard to the Bill of the hon. Member for Reading (Mr. Keating), it was in itself a valuable measure, although he preferred the one now under discussion; but he thought the object in view would be best obtained by referring both of these Bills to a Select Committee, who would perhaps be able to give them a better Bill than either of those now before the House.
§ MR. GLYN
said, he did not entirely approve of the Bill before the House; but so many were the practical evils attending the present system of bill circulation in this country, that some remedy was absolutely necessary. He agreed, the proper course would be to send both the Bills to a Select Committee, in order that they might endeavour to get rid of the existing anomaly in our commercial code on this subject, and assimilate it to the law of Scotland and of other countries. At present the mode in which acceptances were given and taken was a positive evil. A single house in London on the 4th of March last had no less than 700 bills noted for dishonour; and on the same day it was calculated that no less than 5,000 1265 bills in the city were noted. It was evident that these bills were given, not with the bonâ fide intention of discharging them, but on the anti-commercial and most pernicious system of renewal. An evil of this magnitude demanded the serious attention of the Legislature; some measure should be adopted to increase the validity of these instruments. When a man incurred the solemn obligation of accepting a bill, the Legislature ought to see that he was in a position to fulfil his obligations. Seeing how bills of exchange circulated throughout this country on the faith of the indorsed, the Legislature was bound to see that bills were not carelessly or recklessly indorsed. They could not have a greater security against this than was given by the Bill before the House. So far from deteriorating bills of exchange, he was convinced it would raise their character. He knew that some of the largest houses in London connected with the inland trade were promoting this measure, and yet there was no class of men throughout the country who were to a greater extent simple contract creditors—a proof that no danger existed of that class of creditors being injured by the measure proposed. The only objection to the Bill which appeared to him to have any weight, was that relating to fradulent preferences; but as he found a provision against that in Mr. Keating's Bill, he hoped that both Bills would be allowed to go to a Select Committee.
§ SIR FREDERIC THESIGER
said, he had listened attentively to the whole of this discussion, and he confessed that he was more perplexed and embarrassed than ever he had been in his life by the variety of opinions he had heard on the subject. There were two question involved in the Bill, which, in the discussion of its principles, ought to be kept apart. The first question was whether it was advisable that the holders of negotiable securities should have given to them more expeditious remedies than other creditors of realising the amount of those securities; and in the second place it was necessary to consider whether the machinery provided by the Bill was exactly the kind that was required for that purpose. He did not mean to undervalue the weight of the petitions that had been presented in favour of this Bill, but he should be glad to ascertain the character of the persons who had presented these petitions; he should like to know if they were persons who were more in the 1266 habit of taking bills of exchange than of giving them; because he could understand that persons whose business led them to receive bills of exchange to a large amount might be in favour of an expeditious and summary remedy for the recovery of the amount of these securities. He thought, however, the House was bound to pay some attention to the case of honest debtors, as also to the case of creditors who were not the holders of negotiable securities. The question was whether any preference should be given to the holders of those securities. At the present moment he could see no reason why the holders of these securities—merely because the persons bound by them were under the obligation to pay them on a particular day—should be entitled to a greater advantage over simple contract creditors than the holders of money bonds or of mortgages, in which there was a covenant to pay the money on a particular day, or at any time whatever. He did not feel that it would be desirable to give to the holders of negotiable securities the expeditious and summary remedy provided by this Bill. It might be said that by this measure they would prevent the setting up of fradulent defences, but he conceived that they would not prevent such defences being set up by merely expediting the proceedings against the parties. No doubt they could by means of a summary remedy, prevent parties from setting up any defence at all; but such a proceeding as that was not advisable. Now, the principle of the Bill at present before the House was to provide that summary remedy which had been so much dwelt upon, but a most expeditious remedy was at present supplied by the Common Law Procedure Act, and the hon. and learned Member (Mr. Keating) proposed to make that act the basis of his measure. In many respects the Scotch law possessed advantages over that of England, but he thought that no reason why the Scotch law should be transplanted into a foreign soil when he found that the evils complained of might be guarded against equally well by our own English native law. He thought we ought rather to make every improvement that was required in our own English law, rather than substitute for it the law of any foreign country. He quite agreed with the hon. Member who last addressed the House, and his right hon. Friend the Member for Leeds, that it would be extremely desirable that those two measures should be sub- 1267 mitted to the consideration of a Select Committee, in order that a measure might be matured which would prevent the frauds unquestionably often committed in this class of commercial transactions. He was disposed, therefore, to consent to the second reading of the Bill proposed by the hon. Member for Reading (Mr. Keating) as well as of that now before them, in the hope that the originators and promoters of the measure would consent to that course.
§ THE LORD ADVOCATE
said, the Bill which came down from the House of Lords had his entire approbation. He believed that the application of the Scotch law to England would be productive of the greatest possible good, and with respect to those hon. Gentlemen who thought that the nationality of England would be thereby affected, he begged to remind them that the law of Scotland was the law of the whole of the civilised commercial world. The bill of exchange was the currency of merchants, and instead of seeing any ground for maintaining the doctrine of the other side, his wonder was that England should have grown up to such a position of commercial wealth whilst the law of bills of exchange remained in its present barbarous state. These bills of exchange circulated as money from hand to hand, they were assignable and discounted, and then, at a certain point, that which had before circulated as money represented it no longer. What was contended by the other side was, that when a small trader promised to pay a bill of exchange he was not bound to keep his promise, because other people, through whose hands the bill passed, did not keep theirs. When it came to this point that a man was not able to meet his debt without having recourse to a fictitious defence, it was far better that he should go into the Gazette at once.
was happy to think that he was relieved from the necessity of advocating the principle on which both Bills rested, as it was admitted on all hands the present law upon bills of exchange in England was a scandal to the administration of justice. He thought, however, that the introduction of the Scottish law was unnecessary, as tending only to encumber and clog the wheels of justice. So far from attaining the object desired in a more rapid and less expensive way, he thought it would only go to accomplish in a more expensive way an object which might be effected by the slightest possible alteration 1268 of the present English law. He was decidedly in favour of referring both bills to a Select Committee, where their details might be thoroughly considered, and the best measure be sent before the House. Bills of exchange circulated like sovereigns from hand to hand, and it was too bad that parties should be prevented from realising the amount of the security by any fictitious proceeding of the law.
§ MR. MURROUGH
observed that there existed at the present moment a number of inconvertible bills of exchange which were recoverable by the agency of the Court of Chancery. But there was another class of bills of exchange which were drawn by the small traders, and which were never intended to pass as money till the goods they represented were sold. Now if these bills remained in the hand of the original holders this bill might not produce much evil; but as it was well known that numbers of these bills got into the hands of warehousemen in London, and on their failure passed into the hands of others who pressed on the small traders, he thought the House should be cautious before they agreed to the measure. He suspected that the bill was promoted for the benefit of persons behind the scenes.
THE ATTORNEY GENERAL
said, he agreed with the hon. Member for Birmingham that this was a question more for the consideration of the commercial community than for lawyers, though perhaps the experience of hon. and learned Gentlemen might enable them to throw some light upon it. It was notorious that actions on bills of exchange gave rise to defences of so fictitious and fraudulent a character as to be a disgrace to courts of justice; as regarded the creditor they were unjust, and as regarded the debtor, degrading and demoralising. The question then was whether or not the existing state of the law ought to be amended? He thought there could be no doubt that they ought to do so, unless very great embarrassment and injury to commerce would result from it. Was it not palpable that it was an advantage to a man holding a bill of exchange to be able to recover by a cheap, summary, and expeditious remedy? Why did the creditor exact a bill of exchange but for the purpose of ensuring payment? He admitted that the question was one of commercial policy, and it had been said by an hon. Gentleman of great authority in commercial matters, that the effect of the proposed change would be to prevent bills 1269 of exchange being given in small transactions, and thereby limit credit, which ought to be made as extensive as possible. But, on the other hand, they had heard many conflicting opinions on that point; and he thought there would be a good deal of advantage in making men cautious in giving credit to parties whose means did not enable them to take large facilities. Unless the House were prepared to allow the present state of things to continue, and the administration of justice to be scandalised by fictitious defences, it was certainly time to deal one way or other with the subject. Some hon. Members had said that they ought to deal leniently with the debtor, and that he ought not to be rendered liable to his creditor in this summary and oppressive manner; but if it were right under certain circumstances to extend an indulgence to a debtor, such cases ought to be provided for by a competent tribunal. It was highly improper to convert the honest debtor into a dishonest and fraudulent man by encouraging him to go into a court of justice and set up a defence that would be disgraceful to him. With regard to the system of registration, he thought that it operated harshly and injuriously, besides its cumbrous and expensive process. He admitted it was possible that some inconvenience might arise from the bills as they now stood, and that summary jurisdiction might give rise to fraudulent preferences. This was a point on which he thought the investigation of a Select Committee might be highly beneficial. If the inconveniences threatened should appear insurmountable, he did not say that it might not even be necessary to have recourse to the rejection of the measure; for it was incumbent on them to proceed cautiously and carefully, without involving the commercial world in any of the dangers of which some hon. Members had spoken. If, then, the House were prepared to say that in regard to bills of exchange there ought to be an amendment of the law, the question to consider was, which of the bills proposed to the House ought to be adopted? He contended that both involved the same principle, and had for their object the prevention of a debtor's having recourse to a fictitious and fraudulent defence in an action upon a bill of exchange. They should not be guided solely by the desire to make the law uniform in both divisions of the empire; but, believing that a careful revision of the 1270 provisions of the two measures might enable them to obviate these inconveniences, he should certainly support the second reading of this Bill, as well as of the other which was brought forward by the hon. Member for Reading.
§ MR. M'MAHON
called attention to a clause in the bill (the 12th) which would, in his opinion, involve an infringement of international law. The bill proposed to call upon a merchant residing in a foreign country to show cause against an execution issued against him on a bill of exchange, and he thought this was the first time such a principle had been introduced into the law of England.
§ MR. KEOGH
said he was desirous of correcting an error into which the hon. Member for Warwickshire (Mr. Spooner) had fallen, as to what had been said by the right hon. Gentleman the Member for the University of Dublin. The right hon. Gentleman did not agree to the adoption of the principle of the bill in England, and object to it in Ireland, but he had understood him to say that the bill would require to be amended in Committee, in order to give similar powers to the Irish courts to those which were to be given in the English courts.
§ MR. HANKEY
said, that no doubt great inconvenience had been experienced under the present system; and if the Scotch system were adopted he thought commercial transactions would be rendered more secure and payments be more promptly made. He considered it most discreditable on the part of any persons to accept bills which they had not the means of meeting at maturity, and he differed altogether from the hon. Member for Lynn, (Mr. Gurney) whose desire he understood was to place persons without capital in as good a position as persons possessing capital.
§ MR. W. BROWN
said, he approved generally of the enactments proposed in the two bills; but did not think them quite equitable as respected English and foreign bills of exchange, which would be placed in very different positions. To this point the attention of the Committee might also be advantageously directed.
§ MR. MULLINGS
said, that the bill provided for the registration of all bills of exchange and promissory notes. The House was aware that judgments and bills of sale were now registered; but they might not be aware that, through the 1271 agency of the protection of trade societies, lists of all persons who had given bills of sale, or against whom judgments had been registered, were circulated weekly throughout the country. He had learned that a society existed in London, the officers of which searched the register of judgments and bills of sale week by week, and sent out lists to all subscribers of 1l. per annum. This system was most injurious to the interests of the public generally; and he wished to call the attention of the Attorney General to this subject, and he hoped if the bill was referred to a Select Committee, that a clause would be inserted in order to prohibit the publication and circulation of information of this kind with regard to persons whose credit might not be at all affected, although they were parties to bills of exchange or promissory notes. An action had recently been tried at York, in which a merchant proceeded for libel against the solicitor of a Trade Protection Society who had published information of this description, and Mr. Justice Cresswell, before whom the case was tried, said he thought the system was likely to be attended with consequences most prejudical to public credit. He (Mr. Mullings) would support the proposition of referring both Bills to a Select Committee, and he trusted that the Committee would take measures to prevent such unwarrantable and mischievous proceedings.
§ MR. W. WILLIAMS
said that he looked upon this as altogether a commercial question, although hon. Members of the legal profession seemed unwilling to touch upon the commercial part of the subject. His opinion, based upon considerable experience in commercial affairs was, that if the bill passed in its present form it would have a most injurious effect upon the inland trade of the country. The introduction of bills of exchange for the settlement of inland accounts was of comparatively recent date; and, although no doubt evils had arisen from the system, yet, if this measure should be adopted, that species of transactions would be almost entirely abandoned, and great derangement must be occasioned in the mode of conducting the inland trade.
§ MR. SANDARS
observed that, as a very ample discussion had taken place upon this subject, be hoped his hon. friend the Member for Dublin (Mr. Vance) would, in deference to what appeared to be the 1272 general wish of the House, consent that this bill, and that which stood next to it upon the paper, should be referred to a Select Committee.
§ MR. VANCE,
in explanation, said that what he had stated was, that in the course of a long experience he had never had to encounter a frivolous defence to a bill of exchange, and that that was the experience of several other Members of the House. He should certainly take the sense of the House upon the question.
§ Question put, "That the word 'now' stand part of the Question."
§ The House divided; Ayes 114; Noes 58; Majority 56.
|List of the AYES.|
|Acton, J.||Hadfield, G.|
|Adderley, C. B.||Hamilton, G. A.|
|Bailey, Sir J.||Hankey, T.|
|Baines, rt. hon. M. T.||Hanmer, Sir J.|
|Ball, J.||Hayter, rt. hon. W. G.|
|Barrington, Visct.||Headlam, T. E.|
|Baxter, W. E.||Heard, J. I.|
|Beaumont, W. B.||Heyworth, L.|
|Bell, J.||Horsfall, T. B.|
|Bentinck, G. W. P.||Ingham, R.|
|Bethell, Sir R.||Johnstone, Sir J.|
|Biggs, W.||Keating, H. S.|
|Bouverie, hon. E. P.||Kelly, Sir F.|
|Bramley-Moore, J.||Keogh, W.|
|Brown, W.||Kershaw, J.|
|Butler, C. S.||Knatchbull, W. F.|
|Byng, hon. G. H. C.||Labouchere, rt. hon. H.|
|Campbell, Sir A. I.||Langton, H. G.|
|Cobden, R.||Lee, W.|
|Cockburn, Sir A. J. E.||Liddell, H. G.|
|Cocks, T. S.||Lindsay, W. S.|
|Cowan, C.||Lovaine, Lord|
|Cowper, hon. W. F.||Lowe, R.|
|Craufurd, E. H. J.||Mackinnon, W. A.|
|Crook, J.||Massey, W. N.|
|Crossley, F.||Maunsell, T. P.|
|Denison, E.||Miles, W.|
|Denison, J. E.||Milligan, R.|
|Duckworth, Sir J. T. B.||Michell, W.|
|Duff, J.||Mitchell, T. A.|
|Duncan, Visct.||Moncreiff, J.|
|Duncan, G.||Mundy, W.|
|Dundas, F.||North, F.|
|Dunlop, A. M.||Northcote, Sir S. H.|
|Du Pre, C. G.||Oliveira, B.|
|East, Sir J. B.||Palmer, R.|
|Emlyn, Visct.||Pechell, Sir G. B.|
|Ewart, W.||Pellatt, A.|
|Farrer, J.||Phillimore, R. J.|
|Floyer, J.||Pilkington, J.|
|Foley, J. H. H.||Pollard-Urquhart, W.|
|Forster, J.||Pritchard, J.|
|Fortescue, C. S.||Ricardo, O.|
|Freestun, Col.||Ricardo, S.|
|Gladstone, rt. hon. W.||Richardson, J. J.|
|Glyn, G. C.||Russell, F. C. H.|
|Goodman, Sir G.||Seymour, Lord|
|Greene, T.||Smollett, A.|
|Gregson, S.||Stanley, Lord|
|Grosvenor, Lord R.||Stirling, W.|
|Strutt, rt. hon. E.||Wilkinson, W. A.|
|Thesiger, Sir F.||Wilson, J.|
|Tyler, Sir G.||Woodd, B. T.|
|Vernon, G. E. H.||Wrightson, W. B.|
|Waddington, H. S.||Wyndham, W.|
|Walmsley, Sir J.|
|Walpole, rt. hon. S. H.||TELLERS.|
|Whitmore, H.||Perry, Sir T. E.|
|Wickham, H. W.||Napier, rt. hon. J.|
|List of the NOES.|
|Arkwright, G.||Laslett, W.|
|Ball, E.||Lockhart, A. E.|
|Barrow, W. H.||Macartney, G.|
|Bennet, P.||M'Cann, J.|
|Blackburn, P.||MacGregor, James|
|Boldero, Col.||Mowbray, J. R.|
|Buck, G. S.||Mullings, J. R.|
|Carnac, Sir J. R.||Murrough, J. P.|
|Cheetham, J.||Norreys, Sir D. J.|
|Child, S.||Oakes, J. H. P.|
|Cobbett, J. M.||O'Brien, P.|
|Cole, hon. H. A.||Packe, C. W.|
|Dillwyn, L. L.||Paxton, Sir J.|
|Duncombe, hon. A.||Price, Sir R.|
|Dunne, Col.||Reed, J. H.|
|Egerton, E. C.||Roche, E. B.|
|Fitzgerald, W. R. S.||Sandars, G.|
|Forster, C.||Scholefield, W.|
|Franklyn, G. W.||Scully, F.|
|French, F.||Spooner, R.|
|Frewen, C. H.||Stanley, hon. W. O.|
|Fuller, A. E.||Stuart, W.|
|Gallwey, Sir W. P.||Thornely, T.|
|Greaves, E.||Vansittart, G. H.|
|Grogan, E.||Verner, Sir W.|
|Gurney, J. H.||Williams, W.|
|Gwyn, H.||Winnington, Sir T. E.|
|Henley, rt. hon. J. W.|
|Herbert, Sir T.||TELLERS.|
|Jackson, W.||Vance, J.|
|Laing, S.||Muntz, G. F.|
§ SIR FITZROY KELLY
said, that although not present during the whole of the discussion, he had felt it his duty to vote in support of the second reading of the bill, not because he approved of the measure itself, or could say that he entirely acquiesced even with its principle, but because he understood it had been suggested that this and the bill standing next on the paper should be referred to a Select Committee. Now, he really did feel that the law stood so much in need of amendment, that he was ready to concur in any means which would lead to a full consideration of the subject; and he should, therefore, cheerfully support the second reading of the other bill as he had supported the second of this, on the understanding that they should both be referred to a Select Committee.
§ Main Question put and agreed to:
§ Bill read 2o, and committed to a Select Committee.