HC Deb 16 June 1857 vol 145 cc1885-93

Order for Committee read.

House in Committee.

Clause 1.

MR. MACARTNEY,

who had put a Motion on the paper to move to refer the Bill to a Select Committee, said that he was unable to make that Motion by the forms of the House; but that he would proceed to make the objections which he entertained towards the pecuniary and official part of the Bill, and state the reasons why he thought those clauses should be postponed until they had been referred to a Select Committee. The Bill proposed to abolish the present Courts of Bankruptcy and Insolvency in Ireland, and appoint one Court for the disposal of the business now performed by the two Courts. In taking that course it had been deemed expedient to deal with the officers of the existing Courts in a manner which, in his opinion, was scarcely fair with reference to the public funds. The salaries of the Judges had been formerly paid out of the Consolidated Fund, and that of the officers by Votes in the Estimates. It was now proposed to pay all the salaries out of the Consolidated Fund. Under the Act which constituted the former Courts there was no provision for retiring pensions. Under the new Bill retiring allowances were given, and both the Commissioners of Bankruptcy—who were old men and had served twenty years in these Courts—would be entitled to claim, the day after the Bill passed, a retiring allowance of £1,300 a year instead of £1,000 a year, to which they would have been entitled under the former arrangement. The Commissioner of the Insolvent Court could retire at once on his full salary after only three years' service. He should suggest that the senior Commissioner of Bankruptcy should retire at once on the old allowance, and that the other should be made first Judge, and the Commissioner of the Insolvent Court be appointed the second Judge. It would have been far more satisfactory to the people of Ireland, and to these who would have to vote the money, if a Commission had been appointed to consider this subject, and to say what alterations and what consolidations were necessary; and, also, from what source salaries and compensations were to be paid. He suggested that much might have been done to deal with the bankruptcy business by transferring a good deal of it to the assistant barristers, and reducing the establishment in Dublin. This Bill consisted of 411 clauses; those relating to Bankruptcy and Insolvency being so mixed up that it would require a Select Committee to put them into shape. The charge for salaries and, compensations, taking them together, would be £14,542. It would be desirable, therefore, he repeated, that the pecuniary and official clauses should be suspended until the opinion of a Select Committee should be obtained upon them, and he thought that Committee ought to consist of hon. Members unconnected with Ireland. He complained of a loose system which had sprung up between the Government here and the Government in Ireland, by which upwards of £37,000 had in two years been paid out of the Civil Contingencies towards the bankruptcy compensation fee fund and the suitors' fee fund in Ireland. Holding these opinions, he hoped the right hon. and learned Gentleman the Attorney General for Ireland would consent to postpone the pecuniary clauses until after a Select Committee had reported upon the subject.

MR. VANCE

thought the right hon. Gentleman the Attorney General for Ireland was entitled to the thanks of the Committee for those portions of the Bill which had a tendency to place the law of Bankruptcy and Insolvency in Ireland upon a better footing than that upon which it now stood. He was, however, opposed to the proposal to confine the operation of that law to a single Court, because, owing to the increasing commercial prosperity of Ireland, he did not think one Court would present the necessary facilities for the increased number of traders who would be likely to resort to it for assistance. What was required was a simple law of Bankruptcy and Insolvency, and he thought it would have been better to have dealt with those subjects by two separate Bills unencumbered with any provisions for salaries and compensations. He might also state that the Bill, instead of providing for the immediate retirement upon a large salary of the present Judge of the Insolvent Court, might more properly have made his services available in the new tribunal.

MR. WHITESIDE

said, the granting of £2,000 a year more or less for the purpose of portioning the eldest daughter of would the Sovereign had given rise to considerable discussion in that House, but he should like to know in how many instances the public money had been expended in Ireland in abolishing offices whose occupants, men in health and vigour, were now walking about and receiving large salaries for doing nothing. He intended to move for a Return of the number of those offices, for he felt assured that the Committee would be surprised at it. That State of things the Bill under their notice tended to continue; but while he was opposed to it upon that ground, he objected to it also upon the principle that it was in no way calculated to place the laws with which it proposed to deal upon a satisfactory footing. It did not, for instance, provide for the abolition of that distinction between the laws of insolvency and of bankruptcy, for the maintenance of which he had never been able to hear any good reason assigned. He could never understand upon what principle of reason or justice it was that the trader who had given up all his property to his creditors was allowed to start anew in life, while the non-trader, who did the very same thing, was placed in exactly a contrary position, inasmuch as his creditors possessed a lien upon any property which at any period subsequent to his insolvency lie might acquire. Now, that was a point which, in any measure dealing with the bankruptcy and insolvency laws, ought, in his opinion, to be taken into careful consideration. The Bill before them, however, not only did not deal with that important question, but would be found to perpetuate that conflict of jurisdiction between the existing Courts of Bankruptcy and Insolvency, of which, by the establishment of one Court instead of two, it was proposed to get rid. It was also open to the objection that it was likely to throw an increased charge of £7,000 or £8,000 upon the consolidated fund, taking into account the extent to which the expense of the judicial staff, in the shape of salaries and retiring allowances, might, under its operation, be increased; for while the Bill abolished certain offices, it gave to the holders of them their full salaries for life, although some of those persons had not held their situations for more than three years; and some of these salaries were over £2,000 a year. Under this Bill those persons could retire, and then new Judges would be appointed for the new Courts, so that, in point of fact, under this Bill there be two sets of Judges at full salaries. The measure therefore was, in his opinion, calculated to entail a considerable charge upon the country without any corresponding benefit, and he should, under those circumstances, suggest that it should be referred to a Select Committee, which should include one or two commercial and legal gentlemen, with the view of having the subject to which it related dealt with in a satisfactory and comprehensive manner.

MR. MALINS

said, he concurred with his hon. and learned Friend who had just spoken in the opinion that no good reason existed why the present distinction between the bankruptcy and insolvency laws should he maintained. He had asked the question why such distinction existed over and over again, of learned Friends, hut he had never been able to obtain a satisfactory answer. The object in the case of the trader as well as the non-trader being a cessio bonorum for the benefit of the creditor, he could not understand why they should be placed upon a totally different footing. He might also observe, that while the bankrupt, as a general rule, was not liable to imprisonment the insolvent was, and that, his confinement operated in many instances to the complete ruin of his family, and of his future prospects in life. He especially dwelt on another very important difference in the practice of bankruptcy and insolvency, namely, that m the former there was an appeal to the Lords Justice in Chancery, while in the latter there was no possible appeal from the decision of the Commissioner of the Insolvent Court. He had hoped that that anomaly, as far as Ireland was concerned, would be remedied in the present Bill. If the absurd distinction between bankruptcy and insolvency was to be preserved, he objected to the law being administered in one Court. The subject was one of the utmost importance, and he should therefore advise his right lion, and learned Friend the Attorney General for Ireland, as there was no reasonable prospect that the Bill, with its 400 clauses, would pass into law during the present Session, that the question with which it proposed to deal should be referred to either a Select Committee or a Commission. With that view he should move that the Chairman should report progress.

MR. HADFIELD

said, it was high time that some steps were taken to amend the present state of the law as to the imprisonment of debtors, which, he contended, was altogether unnecessary, and only productive of ruin to individuals. Again, the power of imprisonment for contempt of the orders of the Court of Chancery was most cruel and vexatious. There were persons who had been imprisoned for thirty years, and he himself had been concerned in a case in which two ladies had been imprisoned for fourteen years for contempt of the Court of Chancery, their only offence being the refusal to give up a paper which they considered they were justly entitled to withhold. These imprisonments for debt and contempt were a scandal to the law, and he hoped the Government would at length abolish them.

MR. MALINS

said, lie entirely concurred in thinking it was a monstrous evil that persons should be imprisoned for years for debt or contempt. He begged, however, to assure the hon. and learned Gentleman the Member for Sheffield, in whose remarks he entirely concurred, that there was a class of persons who were so enamoured of imprisonment that they would not be set at large. He knew a case in which a man (a client of his own) was twenty years in the Queen's Bench, and positively refused to leave, when an order for his liberation was obtained, notwithstanding that be had been constantly making applications to the Court with that view; while, in another instance, he knew that a lady who was directed to give up certain deeds sat upon the box in which they were deposited, and declared that no power on earth should remove her. For all he knew she was sitting on that box at the present moment. He thought the only way to meet such cases would be to arm the Court of Chancery with powers to open boxes and execute deeds. The hon. and learned Gentleman concluded by moving that the Chairman report progress—a course which he said would, under all the circumstances, be the most convenient to adopt, in order to have the subject reconsidered.

MR. J. D. FITZGERALD

said, that the course which had been taken by the hon. and learned Gentleman the Member for Enniskillen in introducing in Committee upon the Bill the discussion of an important principle was attended with great inconvenience. The present was the third year in which the Bill had been before Parliament, and he certainly could not—seeing that it had been upon the point of passing last Session had it not been that he had been a day too late in complying with the standing orders of the House of Lords—consent to throw it over altogether by complying with the suggestion to refer it to a Select Committee. He would remark, too, that the Bill had been printed since last Session, and that copies of it had been widely circulated with the view of inviting criticism and amendment, but that no suggestions had been offered to improve the measure. The object of the Bill was to consolidate the law of bankruptcy in Ireland, which was scattered over numerous Acts of Parliament. He had not ventured to deal with the large question of the difference between bankruptcy and insolvency in this Bill (which was a great improvement on the present state of the law), but it would not interfere hereafter with the settlement of that question if at any time hereafter Parliament should choose to entertain it. He entertained his own views, however, upon that subject, and he might, perhaps, state, in answer to the observations of the hon. and learned Member for Enniskillen, that some reason for the existence of a distinction between both classes of laws was to be found in the circumstance that while the trader was exposed to the loss of his property in the legitimate course of business, and without any fault of his own, the property of the non-trader was not exposed to similar vicissitudes. The Bill had been most carefully considered, and the arrangement of the clauses was made in the most convenient form. He had been assured on good authority that the Insolvent Court in Ireland was not only unnecessary but actually a mercantile nuisance, and that it would contribute to the facility of mercantile transactions if that court was amalgamated with the Court of Bankruptcy. He could never see why the same law should not be applied to all cases of the administration of property in relation to debtor and creditor, and with this view he had framed the machinery for the discharge of insolvents; he had arranged that the dealing with the property of bankrupts and insolvents should be administered in the same way by one court. When he came to the financial clauses of the Bill, he should make a statement in which he thought he should be able to show that the proposed alteration would not be attended with additional expense, but there would be a permanent diminution of the public expenditure to the amount of £3,000 per annum in relation to this court. The present financial condition of the Courts of Bankruptcy and Insolvency was most unsatisfactory and oppressive, for the procedure in the former was the same as that of the old bankrupt law of England, and was still cumbered with such excessive fees and expenses that, practically, few bankruptcies could be dealt with. All this was to be done away with by this Bill, and the simple process now in practice in England adopted. His only object was to create one good mercantile tribunal for two bad ones, and which would be as cheap and as accessible as possible.

MR. HENLEY

expressed a hope that, as the morning sitting had been fixed partly at his suggestion, and as it could not be anticipated, that the important question relating to the distinction between the insolvency and bankruptcy laws would be raised in Committee, his hon. and learned Friend the Member for Wallingford would not press his Motion to report progress.

MR. MALINS

said, he would withdraw his Motion for reporting progress.

Clause 1 agreed to, as were also Clauses 2 to 28 inclusive.

Clause 29.

MR. VANCE moved to leave out the words "Lord Chancellor," and insert "Court of Appeal in Chancery."

MR. J. D. FITZGERALD

said, the appeal followed the course now usual in Ireland of appealing from the Lord Chancellor to the Court of Appeal.

MR. MALINS

, Mr. Serjeant O'BRIEN, and Mr. BLAND thought the Amendment desirable.

MR. J. D. FITZGERALD

said, he would adopt the Amendment.

Clause, as amended, agreed to, as were the subsequent clauses to Clause 33.

Clause 34 struck out; Clauses 35 to 45 agreed to; Clause 46 postponed; Clauses 47 to 67 agreed to.

Clause 68.

MR. VANCE moved that it be struck out, as there was no similar provision for securing the costs of the official assignee in the English law.

Clause, with an Amendment, agreed to.

Clauses 69 to 83 inclusive were agreed to.

Clause 84, which provides a retiring salary for the present Chief Commissioner of Insolvency, Mr. Hatchell, having been put,

MR. MALINS

asked why it was proposed that that gentleman should retire? He understood that he was still in the prime of life, and perfectly competent to discharge the duties of a Judge of the new Court.

MR. J. D. FITZGERALD

said, that Mr. Hatchell was perfectly willing to continue to perform his present duties as Chief Commissioner of the Insolvent Court, and perfectly competent to their discharge. As the operation of the Bill, however, would be substantially to continue the Court of Bankruptcy, it had been thought advisable to retain the services of the Judges of that court. In the case in which a person retired upon his own mere motive, or from ill-health, it was certainly usual to allow him only two-thirds of his salary by way of a retiring pension, but the contrary was the case when an office was abolished, and its occupant was absolutely compelled to retire from his situation. He might also observe that Mr. Hatchell must now be in his seventy-second or seventy-third year.

MR. MALINS

said, that explanation had removed to a great extent the objection which lie entertained to his retirement with so large a salary.

MR. AYRTON

thought the proposed compensation was fixed at too liberal a rate, and he should therefore propose that it be reduced to two-thirds of the Chief Commissioner's present income, or that it should be made compulsory upon him to fill any other office to which the Government might hereafter deem it desirable to appoint him.

Clause agreed to, as were the remaining clauses up to Clause 152.

The House resumed; Committee report progress; to sit again this day.