HC Deb 18 February 1857 vol 144 cc763-76

Order for Committee read.

Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."


said, the effect of this measure would be, in his opinion, to impose upon the Irish Courts the obligation of issuing execution on the memorandum of an English judgment, without allowing the exercise of that equitable power which courts of common law had always possessed with respect to granting or suspending execution. In this manner it might have the effect of nullifying the operation of the law of limitations; because an English creditor who had obtained an English judgment might, just before the expiration of the six years, send a memorandum to Ireland and have a right of execution during another six years in that country, although he could have no such remedy in the county where he had recovered. He objected to such a violation of large and equitable rules, and moved that the House would, on that day six months, resolve itself into the said Committee.


seconded the Amendment.

Amendment proposed, to leave out from the word "That" to the end of the Question, in order to add the words "this House will, upon this day six months, resolve itself into the said Committee," instead thereof.


supported the Bill, and said, that if the law in England and Ireland were put upon the same footing that would meet the case supposed. He could not see that either inconvenience or injustice would result from the measure; and, so far from being injurious to the Irish trader, it would be more to his advantage than to that of the English trader, inasmuch as the number of debtors coming from Ireland to England was greater than the number of English debtors going from England to Ireland.


said, that in introducing a new law, it was important to consider whether the remedy would not introduce greater mischiefs than the evil which it professed to cure. The instances in which the alleged grievance arose were very rare indeed; and by an Act which he had had the honour of introducing, a judgment creditor in an English or Scotch court could serve notice of action upon the defendant in Ireland and obtain judgment in twelve days at very small expense; but if the defendant settled within six days the costs would not be more than 30s. No counsel would advise a client to defend a bonâ fide judgment obtained in an English Court; and the consequence was, that the delay and expense did not occur. That was the extent of the evil which the present Bill was introduced to cure. In twenty years' experience he remembered but five instances of such applications. The assumption upon which the hon. and learned Member proceeded was, that the law was the same with reference to the judgments of the three countries, and that it was necessary to apply an equal rule of legislation to the three kingdoms. But that was not the fact. The country was promised a Minister of Justice, and as soon as he was appointed he (Mr. Whiteside) should be at him to do his duty and amend and revise the law of judgments in Ireland. The law of judgments had been investigated by a Committee a few months ago, and they stated in their report that the law of judgments in Ireland required to be reconsidered; but that recommendation had never been complied with. At present a party who got a judgment could have it registered in the Court of Common Pleas, and then convert it into a mortgage, and then obtain a receiver to be appointed. That was not the case in England, and until that law had been amended, he thought it was not at all right to give this effect in that country to English judgments also. If this Bill was carried, it would lead to fraudulent preferences. He would suppose a merchant in Manchester or Belfast to say to a trader in Ireland or England, "You want goods. You are a little 'shaky,' and I want to get a preference. Come, give me a judgment. I will not use it against you or enter it until it is necessary." When the time came, and the merchant wanted to oust the debtor, he had only to send the little memorial of the judgment across the Channel. He could then get judgment in half an hour, and could sell up the debtor before the other creditors could interfere. This was both contrary to equity and to the spirit of the bankrupt laws. He would recommend the hon. and learned Gentleman either to postpone his Bill until the new Department of Justice was established, or to refer it to the Attorney General for Ireland, who was bound to bring in a Bill to remedy the law of judgments in Ireland in conformity with the recommendation of the Select Committee.


said, it was absurd to call this Bill an assimilation of the laws of the three countries. He was surprised that such an assertion should have been made, that the Bill was required in order to make Irishmen pay their debts—an assertion with he repudiated with scorn. It was quite right that persons should be made to pay their debts; but he believed that if this Bill passed it would be used as an instrument to compel people to pay what they never owed, and that it would give facilities to debtors to make fraudulent preferences. The whole tendency of the measure was to extend the principle of centralisation, and instead of giving people a ready means of obtaining justice, to put them to the expense of defending cases in the metropolis which might be tried on the spot, and which alone would constitute a very strong objection to its passing.


also opposed the Bill, on the ground that it was objected to by the whole commercial community of Ireland. If such a Bill had been really required, it ought to have been brought in by the Irish Government, which they had not done, and in fact the law officers of Ireland—Mr. Justice Keogh and the present Attorney General—formerly opposed the Bill, though the latter now supported it. To say that the Bill was objected to because Irishmen would not pay their debts, was a vulgar argument; and he believed that if the condition of the two countries was looked into, there would be found to be a great deal more fraud in England than Ireland.


said, he objected to the Bill on behalf of the mercantile classes of Ireland, on account of the facilities it would afford for collusion. There were no petitions from the mercantile classes either in England or Ireland in favour of the measure.


supported the Bill, considering the question to be one entirely between debtor and creditor; and that it was the duty of the Legislature to give every facility for the recovery of debts.


said, he must repeat the opinions which he gave last week on the injustice of allowing persons to obtain judgments in Scotland against men in their absence, which judgments could be put in operation in another country merely by presenting a memorial that the judgment had been obtained. If hon. Members would look to The Times' money article of Thursday last, they would find a letter the writer of which called attention to the great danger of judgments being obtained in Scotland against English debtors behind their backs. The writer showed that unless provisions were framed against giving decreets, or judgments in absence, the same force in England as those obtained in Scotland after defences were heard, parties might be unexpectedly called upon to pay debts sued in Scotland which they never contracted, or for which they were not liable. The fact was that the system of jurisprudence in Scotland was in many respects in a barbarous and primitive state, and required amendment. He opposed the measure on behalf of the English traders.


As this is a Bill of no little importance, I hope the House will bear with me if I endeavour, in a very few words, to state the conclusion at which I have arrived, and also to attempt to explain one or two matters as to which a little confusion seems to exist, obscuring the true position of the Bill. Sir, after considering its provisions, which I had not seen till after coming into the House this morning and listening attentively, and with respect, to everything that has been said on every side, I think it clearly our duty to allow the Bill to go into Committee, where we can easily mould it so as to effectuate the intention of its framers. I think it a salutary measure; and to enable the lay Members present to appreciate it, I would explain what is meant by a Judgment. Well, Sir, what is a judgment? Simply this—the solemn declaration of a public Court of Justice, of competent jurisdiction—pronounced, not behind the back of a defendant, but in his presence, personally, or by his advisers and representatives, and after hearing all that he had to say—that he ought to pay a certain debt or sum of money to the plaintiff. The right to that debt or sum of money had been ascertained by the verdict of a jury, or by the decision of the Judge without the verdict of a jury, if there were no facts in dispute, or if the defendant did not choose to resist the plaintiff's claim, but, as it is called, had suffered judgment to go by default. Why, then, ought he not to pay? In other words, why should not the plaintiff have the fruits of his judgment, by obtaining execution on it? Of course he ought, unless the defendant can still show a reason why he ought not to be compelled to pay. Now, if this judgment be obtained in England, execution is easily obtained; but the object of this Bill is simply to give judgment—thus a public, solemn act of a court of competent jurisdiction—a similar effect in every part of the United Kingdom, in whichever portion of it the judgment may be obtained, so that the debtor shall not fraudulently delay and defeat his creditor; in England, for instance, by going into Ireland or Scotland. Now, the course proposed by this Bill is, to provide for a "brief memorial" of such a judgment, reciting its substance and identifying the Court in which it had been obtained, according to the forms in the schedule—to be transmitted for registration in Ireland or Scotland—and thereby to become possessed of the same operation as if the judgment had been itself pronounced there. But this is complained of as a great hardship, and various cases are suggested, in which fraud or wrong may be done. But I really think them all disposed of by a single section of this Bill. The third section gives the debtor the same means of objecting to the issuing of such a memorial, as he had of contesting the propriety of the judgment itself; for it carefully provides that no such memorial shall be issued by any officer of the Court, without a rule of the Court, or the order of a Judge,—or—I beg the House to observe this—unless the Judge who tries the cause shall certify that such a memorial ought to issue. After this, what is there hard or unreasonable in putting the memorial, for practical purposes, on the same footing as the judgment? I really can see nothing objectionable in such a course—I cannot even fairly suggest anything of the kind. Sir, if I really saw that this Bill would inflict even the semblance of anything of the kind, I can assure my friends from Ireland here, that I should be one of the last men to raise a finger in support of the Bill. I want simply to put debtors and creditors, as far as possible, on the same relative footing in all the three kingdoms, and thus to secure, so far, that object to which so much importance is justly attached, the uniform administration of justice in the United Kingdom. That is, I am glad to say, the constant tendency of our present legislation—and this one is a step in that direction. Undoubtedly, however, if there be anything of the exceptional nature suggested by my hon. and learned Friend the Member for Enniskillen, it ought to be the subject of circumspect consideration; but I own that his very ingenious speech has failed to satisfy me that there is anything which we cannot satisfactorily deal with in Committee, especially with the able assistance of himself and my right hon. Friend (Mr. Napier) who sits beside him. I by no means desire to pledge myself to the completeness of the machinery provided by the Bill for carrying it into operation; but all these matters we can carefully consider and rectify, if need be, by and by. At present I think we are by no means justified in refusing to go into Committee. As to the general character of the Bill, I think it will have a very salutary effect on the country at large. It will teach improvident and fraudulent debtors in any of the three kingdoms that facilities for defrauding creditors are there greatly curtailed, and means of escape closed up—and that a debt once duly established in any part of the kingdom can be promptly realised, by means of the person or the assets of the debtor in any other part of the kingdom. For these reasons I hope the House will at once go into Committee on the Bill.


thought the hon. and learned Gentleman was not acquainted with the history of the Bill. In 1854, the hon. and learned Member for Ayr (Mr. Craufurd) introduced a Bill on the subject, which was referred to a Select Committee consisting of very able members, who were all desirous of giving a cheap and speedy remedy to creditors. He thought, however, that the remedy was worse than the disease. The Committee spent a great deal of time and much labour in endeavouring to frame clauses which would meet the case of a judgment obtained behind the backs of defendants; and a clause had been inserted which provided that no decretal order made against any defendant should be issued against him when residing out of the jurisdiction of the Court, unless some process of summons, or other proceeding, had been served upon such defendant while he was within the jurisdiction of the Court. He was surprised that such a clause had been left out of the present Bill, and he certainly objected to go into a scrambling Committee on the measure in its present state. There was no limitation to the judgments thus obtained provided in this measure. By the first clause a judgment fifteen or twenty years old, which could not be enforced in the kingdom in which it was obtained, might be transferred by memorial to another kingdom, and execution issued upon it without any notice to the person affected by it. Again, if a person issued execution for more than the amount due to him, if he "overmarked" it, he was now liable to an action; but by this Bill if a man "overmarked" an execution in Ireland, obtained by means of an English or Scotch judgment, the person against whom it was issued would have no remedy unless he took proceedings in England or Scotland. That difficulty had been felt by the Select Committee, and they had therefore confined the operation of the Bill to judgments obtained in adverse suits. The subject was full of difficulties, and it ought to be dealt with by the Government. The omission of the clauses which had been added to the Bill in Select Committee in 1854, and in the Bill of 1835, was, in his opinion, a reason why the Bill should be rejected. He considered the conduct of the Government in reference to this matter had been very unsatisfactory. What was the position in which the Bill stood? A Select Committee considered the subject in 1854; in 1855 a measure was introduced; but the Attorney General objected to it, because the subject was then under the consideration of the Committee, and therefore would not agree to its second reading; and at the present time they found him arguing in favour of referring it back to a general Committee. It appeared to him that the Bill was a bad Bill for every part of the United Kingdom. In his (Mr. Napier's) opinion the proper way would be to enact that wherever there had been an adjudication of the demand of the debtor not resident in the country, a certified copy of the adjudication, and the proper affidavits, should be obtained, and that, armed with these documents, an application should be made to a Court in the country in which the debtor resided for a summary order, something similiar to a rule of court, which, when the other party to the suit had had notice, was equivalent to a judgment. The Judge in such case, acting in his discretion, would say whether it was a proper case in which to issue the order. But he must protest against the system of carrying into execution judgments issued in another country in an action with respect to which one of the parties had no substantial notice, and where, consequently, judgment had gone by default.


said, that considerable misapprehension seemed to exist with reference to the Bill. The hon. and learned Member for Midhurst (Mr. Warren) had stated that its object was to give to a similar law a similar effect in the three kingdoms. Such a course might be a wise one, because there could be no doubt that in a civilized country all laws similar to each other ought to have a similar effect. But the present Bill was not at all founded on that principle—on the contrary, the principle here was to give the same effect to different laws in all parts of the country. The Scottish, for instance, expressly provided that in all cases in which a person had any lands or hereditaments in Scotland, and resided out of the jurisdiction of the Scotch court, he should be considered to be lawfully summoned by a decretal citation at the market cross of Edinburgh; while in the case of a person possessing moveable property, a letter addressed to the supposed debtor was merely put into a box; it might never be sent to him; and if this Bill became law he might never hear of it until some person coming to London brought up the process of the Scotch law and acted upon it here, the defendant having no answer. He thought that the mere statement of the proposition would be sufficient to show the hon. and learned Gentleman who introduced this measure that he had begun at the wrong end. He ought to have begun with an attempt to reform the substantive law, and not with a little peddling legislation in reference to the process. What the people wanted was to see the law efficiently carried out in all parts of the kingdom.


said, he very well recollected the introduction of the first of these Bills. It was founded upon the principle that a judgment pronounced in one kingdom should have effect given to it in the other two kingdoms; and the Committee of 1854 were quite clear in their opinion that the principle was a good one. But the Bill also contained provisions relating to the service of process; and the Committee were equally clear that process ought not to be served out of the jurisdiction of the Court from which it was issued. The Bill was reintroduced after the Report of the Committee, with Amendments; but only passed through this House. In the following year the Bill was again introduced, but it contained clauses allowing the process of the Court of Chancery to be served out of the jurisdiction of that Court, and his hon. and learned Friend the Attorney General objected to it on account of those clauses. The Bill was reintroduced last year without the objectionable clauses, but it could not be carried for want of time. The present Bill merely carried into effect the principle unanimously recognised by the Committee of 1854. He agreed with the hon. and learned Gentleman who had just sat down that it would be desirable to assimilate the laws of the three kingdoms; but there were great difficulties in the way of that result, as all nations adhered as long as possible to their own laws, whether those laws were good in the abstract or not; because they were intimately linked in with the history and traditions of their country; and sometimes the jurisprudence of the smaller nation was better than that of the larger nation into which it was sought to be moulded. Effect was given to a foreign judgment in every civilized country of continental Europe, and he thought the time had now come to make a judgment obtained in one of these three kingdoms available in the other two. Even without this Bill effect was given in English Courts to judgments pronounced in Scotland, if the Courts in Scotland had proceeded regularly, and had jurisdiction. The only question was whether they ought to continue to treat the three kingdoms as foreign kingdoms? He thought they ought not. The fact that actions were not very often brought upon English judgments in Irish Courts proved that a measure of this kind was necessary. Hitherto it had been almost impossible for a creditor in one kingdom to obtain a remedy against a debtor in another, because he had to run the gauntlet of the three kingdoms against the debtor; being obliged, after having got his judgment in one country, to raise a separate action in each of the others—thus making three actions necessary for the three kingdoms. Was it not reasonable that, under such circumstances, creditors should prefer to lose their debts altogether than to incur expense and loss of time? He was sorry to see a measure of that kind treated as if it were a question of nation against nation. He believed the hon. and learned Gentleman opposite (Mr. M'Mahon) would alter his opinion of the jurisprudence of Scotland when he had studied it more deeply; but some of the questions which had been raised with regard to Scotch process might very well be considered at a future stage of the Bill. That, however, formed no objection to the present measure in its present stage, and he therefore hoped the House would allow it to go into Committee.


assured the House that he had come down perfectly prepared to offer no objection to the Bill going into Committee; but he had heard such sound arguments against the Bill, and such an utter want of argument on the other side, that he must vote against it. The measure opened undoubtedly a great door to fraud by means of friendly judgments. If the Lord Advocate would take care that the debtor should not be proceeded against without notice, and that provision should be taken against unfair advantage, the opposition to the measure might be mitigated. But at present he defied the hon. and learned Gentleman or the Government to show what would be the operation of the Bill. He considered that the objections to it were not answered, and he should vote against it going into Committee.


said, that while he admitted that the Bill ought not to pass unless it could be shown that its operation would be fair as regarded equally the three kingdoms, he had really not heard any valid arguments against the Bill, the principle of which was simply to give effect to the judgments of the Scotch, Irish, and English Courts in each country respectively, upon a proper affidavit being made; and not to compel the judgment creditor to bring his action on his judgment in England if the judgment were obtained in Ireland; and similarly, if the judgment were obtained in England or Scotland. It was a principle of English law that if a judgment were obtained in a local court, say of Durham, and the debtor removed out of the jurisdiction of the court and went to Cornwall—the distance being considerably greater than from Bristol to Dublin—the creditor was not obliged to bring his whole action over again, on the judgment obtained in Durham, but he got an order from the Court of the Judge to issue execution on the person and property of the debtor in Cornwall. Was not that a wholesome law, and one which it was desirable to extend? It was not true that the measure afforded no security against fraud, or that old judgments obtained in England might, under the provisions of the Bill, be enforced in Ireland. If it were a very old judgment the debtor must, by the course it would be necessary to pursue, have notice. If such a law as was now proposed did not pass, frauds which had been practised for many years would not be prevented. At present, when a man obtained a judgment in England, his debtor went to Scotland. What was the course the English creditor had to pursue? Why, with his judgment in his hand, go to Scotland and bring another action against the debtor, and get another judgment in Scotland. But while the Scotch judgment was being obtained, the debtor, if he wished to evade payment, went to France, and left the creditor without remedy. It was only when a fraudulent debtor wished to avoid payment of honest debts, that they relied on the proposed Act at all. Was it not desirable to prevent the enormous injustice which was created by such a course of proceeding as that? He took it, that if a man had obtained a judgment in one country, he ought to be able to enforce it in either of the other two to which the debtor might have retired. The principle of the Bill was one which ought to receive the sanction of the House, and he hoped it would be allowed to go into Committee. If the objection made by the right hon. Member for the University (Mr. Napier) were not met by the third clause, he should be most happy to give his assistance in amending it.

Question put, "That the words proposed to be left out stand part of the Question."

House divided:—Ayes 127; Noes 80: Majority 47.

Main Question put, and agreed to.

House in Committee.

On Clause 1 (where judgment has been obtained in the Courts at Westminster a memorial thereof registered in Ireland, and vice versâ, shall have the effect of a judgment of the Court in which it is so registered).


said, he did not see why, if the judgment of Scotch Sheriff's Courts were to be enforced under the Bill, the judgments of the English County Courts should be omitted. Indeed, he thought that all Courts of Record should be put on the same footing in this respect. He should propose that the judgments in the Common Pleas of Lancaster and Durham should be included in the Bill; and also the judgments in the County Courts in England, the Lord Mayor's Court of London, so lately presided over by the present Solicitor General; so of the Tolsey Court of Bristol, lately presided over by the present Lord Chief Justice of the Common Pleas; so of the Passage Court of Liverpool, lately presided over by Mr. Justice Crompton; so of the Court at Manchester; and so of the Courts of Assistant Barristers in Ireland. All these were tribunals, not only equal, but superior, to the Courts of the Sheriffs in Scotland, who were not by any means Judges of such high standing as the Judges of the Courts he had mentioned. He therefore moved to include the courts in question.


said, he did not suppose that the Amendment was seriously proposed. The object of the Bill was confined to the judgments of the Superior Courts of Justice, and was not intended to apply to the judgments of the smaller courts with limited jurisdiction. Nevertheless, he thought there would be no objection to include the Common Pleas of Lancaster and Durham in the Bill. With respect to courts of inferior jurisdiction, he thought it would be unwise to extend the operation of the Bill to those courts which were for the recovery of debts of small amount.


said, he had included the English County Courts in the original measure, but they had been struck out by the Select Committee. He could not accede to the introduction of the Lord Mayor's Court into the measure. There might be some reasons for the introduction of the Common Pleas Courts of Lancaster and Durham, as they were Superior Courts. If, therefore, the Committee agreed to their being included, he should offer no objection.


said, undoubtedly the matter had been considered in Committee, and it had been judged proper to restrict the Bill to the Superior Courts; but certainly in consequence the Bill did not carry out its professed principle, and it would subsequently be said that the inferior courts ought to be included.


said, the Committee would do wisely in rejecting the Amendment, except as to the courts at Lancaster and Durham, which were virtually Superior Courts.


said, the original Bill included all the inferior courts of the country; but the absurdity of this proposition became manifest in Committee. But he certainly should prefer including the Lord Mayors' Courts of Dublin and London rather than the Sheriffs' Courts of Scotland. Why, it appeared that in Scotland judgment could be obtained against a man without having served him with any process. He had no objection to Scotchmen being under such law (if they liked it), but he objected to it on the part of Ireland.


had had so many suggestions made to him which would tend to improve the measure, that it had occurred to him to propose that any further discussion on the Bill should be postponed to that day week, and in the interval Members having Amendments could have them printed with the Notices. By adopting that course much time would be gained which would otherwise be taken up in discussing Amendments which did not appear on the paper, and the Committee would be able to arrive at a fair determination as to the form of the Bill. Several Amendments had been proposed to him by one of the Irish Judges.


said, the proposition was entitled to consideration, and he advised that the Committee should report progress. Moreover, he thought that Amendments might be made in the Bill which would free it from all objection—for example, as to judgments of old standing, it might be provided that the judgments should be transferred within a certain period. Again, he thought there ought to be a copy of the judgment sealed with the seal of the Court instead of a memorial, as provided in the Bill. It had been said that the mercantile community of Ireland were against the Bill; but the Chamber of Commerce in Dublin was in its favour, suggesting, however, a few amendments. Upon full consideration of the subject he should be prepared in a week to place a series of Amendments on the Notice Paper. On the present occasion he recommended a postponement. With regard to himself, as there had been an imputation cast upon him for neglect of law reform, he had to explain that he had given full attention in the course of a Procedure Act to the provision suggested by the right hon. and learned Gentleman opposite (Mr. Napier), which, however, he found would be inconsistent with the English and Irish Common Law Procedure Acts. For that reason, and not from any disregard of the suggested provision, he had declined to adopt it. He had only to again recommend the postponement of the Bill.

MR. HUGHES moved, that the Chairman do report progress.


, of course, wished that the Bill should be perfect, and he hoped that by yielding to the suggestion, and by securing the assistance of his hon. and learned Friend, it would be made perfectly acceptable to the House.

Committee report progress; to sit again on Wednesday next.