HC Deb 11 February 1857 vol 144 cc503-10

Order for Second Reading read.

Motion made and Question proposed, "That the Bill be now read a second time."


said, he wished that Ireland had been omitted from the Bill. The mercantile and professional classes of that country had the strongest objections to the Bill, and the Irish Members had defeated it every year since the present Parliament was summoned. Yet the hon. and learned Member for Ayr (Mr. Craufurd) persisted in endeavouring to force the measure upon the House. Many of the small traders in Ireland were in the habit of making their purchases in this country, and if the Bill passed, and an action were brought against them in this country, they must bring over their witnesses at a ruinous expense to defend it. He had warned the hon. and learned Member that he should persevere in his opposition, and he regretted that Ministers had permitted the Bill to be reintroduced. He should, therefore, move that the Bill be read a second time that day six months.


said, if his hon. and gallant Friend (Colonel French) resisted the Bill on the part of Ireland, he should certainly oppose it on behalf of England. It proposed to effect a change in the law for which there was not, in his belief, the slightest necessity. A man who had obtained a judgment in England might now issue execution upon it in Ireland by means of a short action, and an Irish creditor might in the same way obtain execution against an English debtor. But were hon. Members aware what the effect of the Bill would be with regard to judgments obtained in Scotland? A person holding "heritable estate" of any kind, or possessing goods in Scotland, was liable to be summoned by "edictal citation," a process which consisted of the proclamation of the names of the parties to a suit, and the holding up of a triangular piece of paper at the Market Cross of Edinburgh, and which gave the Court of Session power to pronounce judgment in the cause. A judgment so obtained, in the absence of a defendant, would by the proposed measure be transferable to the Courts of England and Ireland, so that any gentleman who went to Scotland and took a bit of land or a cabin for the shooting season, or who left behind him any personal property, such as a gun or a fishing-rod, would be liable to have a judgment obtained by the process of "edictal citation" enforced against him in this country. Again, by the law of Scotland, although not by the law of England, owners of mines and factories were answerable for injuries done to one of their servants, arising from the neglect of another of their servants. If the present Bill became law the owners of factories and mines where accidents had occurred through the negligence of servants, resulting in a great loss of life, might therefore be ruined if they happened to possess any property in Scotland or were ever caught there. Another effect of it would be that paupers in Scotland would have power to sue persons of property in Egland and Ireland without giving security for costs. The Bill had been sent to a Committee three or four times already, and if it ever was to arrive at maturity, it ought to be in that state now. The Bill in fact was bad in principle, and when its details came to be examined, there was scarcely a good provision to be found in it. It disregarded every recognised principle of equity and justice, in order to meet the views of some Scotch lawyers who wished to elevate their mongrel Scotch system of half Civil and half Common Law into a recognised system of jurisprudence. He hoped the House would reject the Bill, and he should therefore very cordially second the Amendment.

Amendment proposed, to leave out the word "now" and at the end of the Question to add the words "upon this day six months."


said, he thoroughly agreed in what had fallen from his hon. and learned Friend opposite as to the vicious character of the Bill, and was so convinced of the inexpediency of its introduction that he should support the Amendment. It was not a measure giving reciprocal advantages to both countries, but its reciprocity was like Irish reciprocity—all on one side. The Bill would be injurious both to the country and the profession. A power was given to the Sheriff's Court in Scotland which was not given to the County Courts in England or to Assistant Barristers' Courts in Ireland; so that an advantage had been conferred upon the country to which the hon. and learned Member who introduced the Bill belonged, and which England and Ireland were deprived of. It had been the tendency of the English Legislature to afford facilities, by means of which trials could be readily obtained in the cases of dispute; but the Bill would remove such Courts to a greater distance than ever. He should give the Bill his strenuous opposition.


said, he should support the Bill, because he thought it would remedy a great defect in the law, which had been long felt by the mercantile classes. He apprehended that the real reason why the Bill was opposed by the Irish Members, was, that they had not capital to pay their debts. He could not agree with the hon. and learned Member for Wexford (Mr. M'Mahon), in thinking that it was a hardship not to allow a man who had left his debts in England unpaid to go shooting in Scotland. He certainly thought it would be desirable to assimilate the laws of England and Scotland, and he could not understand why it should be necessary for a man to bring three separate actions—one in England, one in Scotland, and one in Ireland for the recovery of the same debt.


said, he objected to the Bill, because, in defiance of every remonstrance, the hon. and learned Member for Ayr had persisted in including Ireland in, it, to which country it would be a great injury. Under the disguise of reciprocity, it sought to obtain great advantages for Scotland without conferring any upon Ireland. He denied the assertion of the hon. Member for Sheffield (Mr. Hadfield) that Ireland was either unable or unwilling to pay its own debts. But the case of Ireland was quite distinct. It was not a manufacturing country like England, but subsisted mainly by agriculture, and its debts were chiefly owing to English creditors. It was very well known that the principal contracts arose from the export of agricultural produce and cattle from Ireland; and, therefore, it was clear that the effect of such a measure as the present would be that the major part of the judgments would be obtained in England against persons in Ireland, because the export of produce did not give rise to credits or debts while imports of manufactures did. The only way that the Bill could operate would be to enable the Manchester or Birmingham manufacturer to bring his action in England, and if a process-server could be found to swear that the process had been served, judgment might be obtained by default and registered, and then without any possibility of impeaching it in Ireland, it would stand in the same position as a judgment obtained in the Irish Court of Common Pleas; and even where the judgment was obtained by fraud there would be the greatest difficulty in setting it aside because they would first have to set aside the memorial for registration in the Irish Court, and when they had done that the judgment would still be good in England, and therefore second expensive proceedings would be necessary. On these and other grounds he was totally opposed to the Bill.


said, he was also opposed to the Bill. The question involved in the Bill was whether in England, Ireland, and Scotland principles of legislation should be introduced, which should be different from the principles of administration which had prevailed in Courts of Justice within the memory of man; or whether those principles were to be subverted by an in- direct course, when in point of law they could not be by a direct course? The object of the Bill was centralisation. The grounds on which he opposed the Bill were that they asked the Court to issue a process, in respect to which it had no record or means of controlling the form of record; and, without giving the record, they ask the Court to issue an execution. The true remedy for the evils was to make the processes of the Courts of Westminster applicable to all parts of the kingdom.


said, that the Bill was either misunderstood or misrepresented. Some arguments had been used which he considered were unworthy the attention of the House. He had heard it stated that the Bill would be injurious to the interests of the Bar and of the solicitors of Ireland; but was an Imperial measure, providing for the due enforcement of certain rights, to be obstructed for such a reason as that? The effect of the Bill was to remove that which was a blot and a disgrace to the laws—the necessity for a creditor suing his debtor in separate actions for each of the three kingdoms. A creditor, for instance, in Ireland commenced an action for the recovery of a debt, and obtained a judgment. That judgment was conclusive, but the debtor removed to this country, or his property was here, and then the Irish judgment was of no value, and he was compelled to commence a new action for the same demand. Or on the other hand, an English creditor would have to institute a fresh action in Ireland before he could recover a claim upon which he had obtained a judgment in England. A case had come under his own observation in which a peer residing in this country had had a judgment recovered against him, but his person was privileged. He had considerable property in Ireland, the creditor followed him, but the Irish Courts said we cannot grant you a process on this English judgment. In England they said you cannot execute your judgment, because the person of your creditor is privileged. Now, he would ask, was such a state of things to be allowed to exist. He could only understand some of the objections which had been urged against the measure on the ground that all the creditors resided in England, and all debtors in Ireland. He maintained that the principle of reciprocity did exist in the Bill, because a judgment obtained in Ireland could be executed in England. It was not true that the Bill would give greater facilities for obtaining judgments than existed at present. If the arguments against the Bill proved anything, they proved that the existing state of the laws was highly objectionable; but surely that was no reason fur opposition to the principles contained in the measure then before the House. He believed that it had been completely misunderstood. It had gone through a Select Committee, though under a different form, where it had been carefully considered, and clauses expunged which might have been liable to abuse, and it had been four times before the House. He could not see that any danger would be likely to result from wiping away a disgrace which was none the better because it had existed for centuries. Now was the time to relieve themselves from the monstrous proceeding of instituting fresh actions on judgments already rendered conclusive.


said, after the Bill had been through the Committee it came before the House, and was discussed on a second reading, and was rejected with the concurrence of the late and present Attorney General, who stated that the object was good, but had not been well carried out. In Committee he had tried to bring the Bill into an effective form, but had failed in so doing. Bad reasons might be given for rejecting a bad Bill; and the right hon. and learned Gentleman (Mr. J. D. FitzGerald) had adduced only the bad reasons against it. In the case of the peer, for example, the Court of Exchequer in Ireland had pointed out the true remedy—the enactment of a provision for "substituted service" of a person resident in another country. Now he (Mr. Napier) had framed such a provision for the Common Law Procedure Act, but it had not been accepted. He objected to the Bill upon valid grounds, There were more persons residing in Ireland indebted to persons in England than there were in England indebted to persons in Ireland. And many debts were secured by warrants of attorney, on which execution in Ireland could not be obtained without satisfying the Court that the warrant of attorney had not in the meantime been satisfied and discharged; whereas under the present Bill the creditor might in this country issue execution on simple registry, without satisfying the Court as to the time which had elapsed since the warrant was given. Questions as to the Statute of Limitations, or as to insolvency and bank- ruptcy, might arise, and cause great complications and practical difficulties, which were by no means provided for by the Bill in its present form. The general principle of jurisprudence was violated, that execution should be commensurate with jurisdiction, and without any sufficient safeguards nor effective provisions against collusion. The proposed Bill was to be an Imperial law, and its effect on the whole Empire must be considered. It would, however, he had every reason to believe, operate injuriously on Ireland, and besides that country would acquire no advantage from it. Make men pay their debts; but this might be done by provisions for substituted service of process. He did not see how the objections he had urged could be obviated. The memorial or copy of a judgment was to have the effect of a judgment. In all his experience he had not known half a dozen instances of any grievance; whereas the Bill would produce practical evils of a serious nature. He had given the measure his best attention, and felt bound to oppose it.


said, he had listened with surprise to some of the observations urged against the Bill, founded apparently on the ground that there were mere Irish than English debtors, or upon some technical details in the Bill which might require an amendment. If there was any force in the latter class of objections, the proper time for considering them would be in Committee. With regard to the former, he could not allow it to be said, or imagined, that there was any Irish Member who would found his opposition to a Bill upon the circumstance that it would compel a large class of Irish debtors to pay their debts, and give an advantage to English creditors which they did not now possess. The Bill was founded on an honest principle, and he thought it a monstrous absurdity to compel a man who had obtained a judgment in one tribunal to commence the process again. When the Bill was last before the House it contained certain objectionable clauses. They were omitted from the present Bill, the object of which was simply to enact that a judgment obtained in England should have the same effect in Ireland and Scotland. He could not concur in some of the objections which had been made, namely, that the measure would not give to the Irish Court the same equitable jurisdiction over the English judgment as was possessed by the English Court, for he conceived that it armed the Irish Court with the same equitable jurisdiction over the English judgment as the English Court possessed. He also conceived that the objections urged by the right hon. and learned Member for Dublin University (Mr. Napier) founded on technical considerations, proceeded from an erroneous rending of the Bill; but, at any rate, they could be removed by the introduction, if necessary, of a few words. The Bill was in the interest of the just rights of creditors, both English and Irish, and was introduced to put an end to an anomaly as absurd as if a judgment pronounced in Middlesex should not extend into Surrey.

Question put "That the word 'now' stand part of the question."

The House divided:—Ayes, 56; Noes, 46; Majority, 10.

Main Question put and agreed to.

Bill rend 2°.

The House adjourned at ten minutes before Four o'clock.