HC Deb 13 May 1857 vol 145 cc224-38

Order for the Second Reading read.

MR. CRAUFURD

rose to move the second reading of the Bill, which he said he had the misfortune of having had in hand these four years; and it was his duty now to explain its objects and provisions for the information of those Members who had not had seats in the last Parliament. The object of the Bill was to remedy an existing anomaly in the practice of our judicature which prevented the execution of any judgment except within the jurisdiction of the particular Court which issued it. At present, when a creditor obtained judgment in any of the courts in England, Ireland, or Scotland, he could not act upon it in the other two. A judgment obtained in any one of the three kingdoms was, in fact, treated as a foreign judgment in the others, and could only be proved as the foundation of further proceedings in the other courts. In the case of a judgment obtained in England, for example, the debtor could evade it by passing over to Ireland, and before the creditor could touch either his person or property, he must bring a fresh action in an Irish Court and obtain a fresh judgment before he could have execution from that court. But this was not all. The debtor might then proceed to Scotland, where the same process would have to be gone through over again, so that the creditor might be put to the expense of bringing three actions and obtaining three judgments before he could enforce his rights. In a kingdom which called itself "the United Kingdom," such a state of things appeared to him not only anomalous and absurd, but what was of much more importance, very little conducive to the interests of a commercial community. This anomaly the present measure proposed to remedy, by introducing the broad principle, that instead of a fresh action, a simple registration of the judgment shall be sufficient; and his Bill provided, in effect, that when a judgment was obtained in any competent court in any one of the three kingdoms, an official notification of it in a form provided should be sufficient ground to authorize any competent tribunal in the other two to issue execution, or to take such other step as might be necessary to give to the creditor the full benefit of the judgment he had obtained. Such was the plain and simple object of the Bill. By agreeing to the second reading, the House would do no more than sanction its principle, leaving the details to be altered and amended in Committee. It was true that many objections had been raised—and by none more than by the hon. and learned Member for Enniskillen—against the mode by which he proposed to carry out his object; but those were details which were proper for the consideration of a Committee. He did not propose to alter the law, or to touch upon the jurisdiction of any one court in either kingdom; while the mode he proposed appeared to him to be that which was most acceptable to the country, and one which would entirely avow that interference with the national prejudices either of Scotland or Ireland, which had excited so much comment. He had adopted several Amendments which had been suggested by hon. Members from various countries, and among them those which had been suggested by his right hon. Friend the Attorney General for Ireland—so that he hoped the Bill would be acceptable to that country; and also some which were applicable to Scotland. He therefore hoped that the Bill would receive the approbation of the House.

Motion made, and Question proposed, "That the Bill be now read a Second Time."

COLONEL FRENCH

said, that if this Bill had been of the simple character the hon. and learned Gentleman pretended, it would scarcely have encountered such general opposition. He thought, on the contrary, that it would produce universal confusion, and was an attempt to inflict on England and Ireland the barbarisms of the Scotch law, and to destroy the last vestige of the nationality of the different countries of the United Kingdom. It had been clearly shown, when the Bill was before the House last Session, that, under its operation, a man who had gone to Scotland to enjoy the shooting might find, without any previous intimation being given, an execution upon his house and property for a debt contracted in England. The Bill had received the opposition of every Irish Member, and yet the hon. and learned Gentleman persisted in pressing it upon the House, refusing to take the advice given him by the Lord Advocate to confine its operation to England and Scotland. The Irish Members had resolved to offer it every opposition in their power; and considering the pressure of public business, and the obviously bad character of the Bill itself, he should move as an Amendment that the Bill be read a second time that day six months. Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months.

MR. L. BLAND

seconded the Amendment. He thought he should be able to show, under the existing commercial circumstances of the three countries, and also as regarded the peculiar laws of the three countries, that, although this Bill professed to give reciprocity to the three kingdoms in respect of judgments, yet in reality the alteration in the law would be against the country of which he had the honour to be a Member—not only were the Irish commercial community against the proposed change in the law, but also this measure was opposed by all classes in Ireland, and by all her Members, without reference to party or political feelings; they looked upon it with suspicion and distrust, and considered that the balance was decidedly against them. To make the Bill reciprocal and just, the law in all three countries should be the same both as to procedure before, and remedy after judgment; yet it was admitted that in both the law of Scotland was essentially different from that of the other parts of the United Kingdom. Then, again, there was a difference in effect between the operation of a judgment obtained in England and of one obtained in Ireland. In Ireland a peculiar system of registering judgments prevailed, which gave them the force and effect of a mortgage, so that they were of greater efficacy there than in this country. But if the Bill passed into law, an English creditor would be able to proceed upon a judgment obtained in England, and to seek execution in Ireland, and avail himself of these remedies, while a judgment obtained in Ireland by an Irish creditor executed in England, would be of less force and effect against a debtor's lands and tenements in England. The hon. and learned Gentleman had said, when he obtained liberty to introduce this Bill, that he would adopt the Amendments proposed by the right hon. and learned Attorney General for Ireland; but he (Mr. Bland) found that a most important Amendment, which was placed on the paper in March last, had not been adopted. This Amendment was to give the Court where the judgment was entered up full control over it, and the clause ran thus:— That every judgment or decree registered under this Act should be subject to the jurisdiction of the Court in which the judgment was registered, to all intents and purposes, as if it were a judgment of the Court. That clause contained a great principle, but it was omitted from the present Bill. The commercial community in Ireland considered that the measure would give facilities for fraudulent collusion, and preference in cases of bankruptcy, because, if a commercial house in Dublin or Belfast gave a judgment to a creditor in Manchester, it might be used by the latter to obtain a fraudulent advantage. Another objection entertained against the Bill was, that it would tend to centralize much of the legal business of Ireland in London. The hon. and learned Gentleman had not been able to show by any return that any practical grievance existed. There were plenty of law reforms in which the hon. and learned Gentleman would have the co-operation of all persons; but this was not one of them. Under these circumstances, considering the general objection of the legal profession, of the commercial classes, and the community at large in Ireland to the measure, he cordially seconded the Amendment.

MR. AYRTON

said, that he thought a Bill of this kind ought not to be discussed on any grounds of nationality, but on the broad ground of whether it was or was not a measure of law reform. For his part, he would support the Bill if he were satisfied that it was really a measure of law reform; but it appeared to him to be, in that respect, a proceeding entirely in the wrong direction. There was at present a demand for a codification of the law, but while they made that demand they should be careful to have their legislation consistent with the codification which they required. This measure appeared to him to interfere with the prospect of a general codification; because, as there were three codes of law, and three modes of procedure in the three kingdoms, they would, by passing such a measure, decide that that difference of code and procedure should exist. Looking to the case of England alone, he thought it would certainly be a most inconvenient thing for a person who happened to be on a visit to Ireland, to find that a judgment recorded against him in England was brought against him in Ireland, without having received any notice whatever of what had taken place. Perhaps, before moving in such a question as this, the first step ought to be, to consider whether a more summary mode of procedure in certain cases than now existed could not be adopted. They had recently considered the case of summary judgments when there were good grounds for giving them, and it would, he thought, be well to consider whether they could not enlarge that principle, so as to include summary proceedings on judgments obtained in other countries. As regarded England, it appeared to him that the proper principle would be, to extend the provisions of the Summary Procedure Act relating to bills of exchange to all claims whatever, fortified by written obligations, or which arose out of judgment. That would be proceeding on the principle of codification; but nothing could be more inexpedient in the practice of the law than that there should be different statutory forms of procedure applicable to different demands. With regard to Scotch procedure, with which he was unacquainted, he would say, let the Scotch lawyers find out how a foreign judgment could be most summarily enforced in their courts, and then propose the proper remedy. As to Irish procedure, it had been so much improved of late, that it was not thought necessary to introduce the sum- mary process on bills of exchange into that country; but it would be for the Irish Courts to consider whether they had arrived at perfection of procedure with regard to those obligations to which he had specially alluded, and if they found that the English mode was better than their own, they ought to adopt it. It was not for him, however, to interfere with the reform of the Irish law. There were plenty of Irish lawyers fully competent to deal with the subject. One great defect in the Bill before the House was that the summons—the inquiry which was to give effect to the judgment—was not to be in the place where the judgment was to be enforced, but in the place where it was to be obtained. Now, the protection which every man ought to have, required that the information should be given in the place where a judgment was to be enforced. Upon the whole, therefore, he should oppose the Bill.

MR. M'MAHON

said, he considered the measure a violation of the established principles of law and jurisprudence for which there was no excuse or necessity, and he trusted it would never be passed by the House. The great anomaly of the Bill was that it would impose upon England and Ireland the law of Scotland, which was at variance, not only with the law of those countries, but of France, and of every other nation entitled to our respect. The proper course would be to assimilate the law of Scotland to that of England. Scotch lawyers were beginning to see that the inevitable result of our legislation would be to assimilate the Scotch law to that of England, as was very plainly laid down in an article lately published in the Journal of Jurisprudence. That being the case, why should the hon. and learned Gentleman (Mr. Craufurd) endeavour to impose on England and Ireland some of the worst features of the jurisprudence of Scotland. Few lawyers indeed, except those who hoped to be Lord Advocates, would venture to affirm that the commercial law of Scotland was beneficial to that country; and he believed that among the people of Scotland themselves there was an almost universal feeling in favour of the introduction of English law. The Scotch system of law for 3,000,000 of people cost as much as that for the whole of England with a population of 18,000,000; they had thirteen Judges in the Superior Courts and an enormous judicial staff in the Sheriff Courts. Could anything be more preposterous than to make, as this Bill proposed, the judgment of a Scotch Court more forcible in England than the judgment of an English court would be? In Scotland, when a decree was given in absence, forty years was allowed to dispute it. Transfer that judgment to England and it became absolutely irreversible. The Scotch lawyers themselves said that there was no finality to a Scotch proceeding until it reached the House of Lords. He did not know whether this measure extended to the decrees of the Sheriffs' Courts in Scotland, but proceedings in those courts were never final, being liable to be carried to the Court of Session: yet this Bill would make a judgment which was easily reversible in Scotland, irreversible when transferred to England and Ireland. What he wanted was to reduce the Scotch law to the same principles of common sense which characterized the law of England. One of the first maxims of the English law was, that no man should be condemned without being heard in his own defence; but in Scotland a dishonest creditor had no difficulty in obtaining a judgment in the absence of his debtor. Suppose an English gentleman went to Scotland, on a shooting or fishing excursion for instance, and if he only left a gun or a fishing-rod behind him to bring him within the jurisdiction of the court, his creditor, if he were "furth" of Scotland, as the phrase was, had nothing whatever to do but to go to the Scotch court and obtain a citation against him, and then a decreet in absence; and the first thing which the creditor would hear of the claim would be, if this Bill should pass, when the writ of execution was served upon him in this country. This judgment, too, though it might easily be overturned on appeal in the Scotch court, could not be touched when once it was registered in England or Ireland. Even if the debtor were in Scotland, all the creditor had to do was to get him summoned at the market-cross of Edinburgh, and, after a certain number of "Oh yeses" and fixing the summons to the cross, the judgment could be obtained just the same. Even this ceremony, it was said, was often omitted, and many writs were executed in Scotland without the summons ever having left the attorney's office. It was to be hoped, therefore, that before Gentlemen from Scotland attempted to force the Scotch law upon the other two kingdoms they would take the trouble to remove from it such barbarous anomalies as these. The effect on commercial transactions would be disastrous, by the facility it would give of fraudulently obtaining judgments. Again, suppose a bill of exchange were obtained by a Scotchman from a merchant in London fraudulently, under circumstances which would prevent it from being recovered in any other country, all the Scotch holder had to do was to get some one to order goods from the London trader, which when they were sent down to Scotland would render him liable to the jurisdiction of the Scotch courts, and immediately judgment might be obtained on his bill, which, when once registered in England, could not be set aside. But there was a still further anomaly in the Scotch practice. In the English or Irish courts, when a man got notice of an action, all he had to do was to instruct an attorney to put in an appearance; but in Scotland the agent employed was liable for all the costs of the action; consequently no writer to the signet in Scotland would appear for a stranger until he had got security, not only for his own costs, but for the costs of the other side also. To import such extraordinary hardships as this into the English and Irish procedure would be anything but law reform, and he hoped, therefore, that the House would pause before it gave its sanction to this Bill.

MR. NEATE

said, the question to be decided was whether Irish and Scotch courts were to be considered as foreign courts in English courts, and vice versâ; and also whether the judgments of those Courts were to have no more force here than the judgments of foreign courts—that is, to be considered as a primâ facie ground of action. As far as Ireland was concerned the English and Irish forms of procedure were so much alike that the decisions of the Court of Queen's Bench in England were quoted in the Queen's Bench in Ireland, and vice versâ and there was no reason, therefore, why a judgment pronounced by one Court should not have as much effect in either country as the judgment of the other. The legal documents, too, of the two counties were so much alike that the inferior officers of the courts would have no difficulty in judging what was really a judgment of the courts of the other country. So far as England and Ireland were concerned, there was no objection to the Bill; as regarded Scotland, the case was different. But he could not allow that the Scotch code, which was the code of the greatest part of the civilized world, was liable to the epithets which the hon. and learned Gentleman the Member for Wexford (Mr. M'Mahon) had bestowed upon it. If the question were referred to the lawyers of Europe the chances were that it was our own code which would be pronounced barbarous and anomalous. The objections which the hon. and learned Gentleman had urged to the manner in which Scotch judgments might be made available in this country and in Ireland were more fitted for Committee than for the second reading, and if there were any force in them they might be easily remedied in that stage.

MR. WHITESIDE

said, that though he had no objection to any private Member trying his hand at law reform, yet a Bill of this importance ought to have been introduced by the Government. No doubt the Scotch law contained many sound principles imported from the civil law, but that part of the Scotch practice which the hon. and learned Gentleman's Bill sought to import into England and Ireland was opposed to all natural justice, and he could never consent to see it made part of the English and Irish procedure. The last time that this Bill was under the consideration of Parliament, the right hon. Gentleman the Attorney General for Ireland had succeeded in introducing into it an Amendment—the requiring of a copy of the judgment to be registered instead of a mere extract from it—which the hon. and learned Mover of the Bill declared to be destructive of its principle and detrimental to its working, and yet that very provision was introduced into the Bill which the House was now asked to read a second time. The Scotch were a wary people, as Lord Brougham had once said, and when he saw the Scotch Members unanimous in endeavouring to pass a piece of legislation for their own country he was generally inclined to vote with them, feeling sure that it was likely to be advantageous; but when they sought to import part of their legal procedure into the rest of the kingdom they must condescend to give valid reasons for it, and must be prepared, too, to listen to a little wholesome contradiction. By this Bill every judgment heretofore obtained in any one of the three kingdoms might be registered and made available in the others. A judgment, therefore, which had been obtained in Scotland might be taken at once to Dublin, and by the law of Ireland, having been registered in the Court of Common Pleas, it might be taken to another office and registered against the real estate of the debtor, and then, if it were for more than £100, the creditor might go to the Rolls and get a receiver appointed over the landed property of the debtor before he had ever heard a word about it, and this without any redress, too; at least, the only redress a man would have would be to go to the Scotch courts, where he would get it perhaps about the end of his life, or at the end of his executor's life. But where was the necessity of the Bill? In all his experience he had scarcely ever known a case in which a judgment fairly obtained in this country had been made the subject of an action in the Irish courts, because, of course, a debtor, if he had no real defence to make to a judgment brought over to Ireland, did not attempt to oppose it. No man was fool enough to dispute at the second stage that which was indisputable at the first. Neither would expense be saved by the Bill. First of all, a copy of the judgment had to be obtained, then a Judge's order for proceeding to the other court with it, and then it had to be registered, the cost of all of which could not be under £5 or £6; but by a Bill which he had succeeded in passing some time ago, process might be served on the party sued for exactly £1 10s. The Bill proposed to abolish the provision by which a non-domiciled person had had to give security for costs before bringing an action, and thus to relieve a dishonest creditor from all the difficulty which he at present laboured under in bringing an action. It would open the way to all sorts of fraudulent executions and to unjust preferences of one creditor to another. The moment a Scotch creditor had got a decreet registered in this country, he might take himself off to Scotland; and if a debtor wished to upset his judgment, he would have to follow him to Scotland and take his witnesses with him,—not a very economical mode of procedure. Take, too, the case of the wrong man being served with a process; there was no jurisdiction in the Bill to set aside such a judgment in Dublin after the ceremony at the market-cross of Edinburgh, which the hon. and learned Gentleman the Member for Wexford (Mr. M'Mahon) had described had been gone through. As he read the Bill, all the creditor had to do in the Scotch courts was to give some proof that his debtor had received notice of the action at some stage before judg- ment was given; he might go on with his action, and just before judgment was given might pop a letter into the post to his debtor, and that might be sufficient notice, and he would get his judgment as a matter of course. He had no objection to the existence of such a mode of procedure in Scotland. If the people of Scotland liked such luxuries let them keep them. But he protested against their being introduced into the English and Irish courts.

MR. MALINS

said, he had listened with attention to the arguments of his hon. and learned Friend, but they did not induce him to vote against the second reading of this Bill. Many of his objections applied to the details only of the Bill, and could be readily obviated in Committee. When a judgment had been properly obtained, whether in England, Ireland, or Scotland, he could not see why the same facilities for its enforcement should not be given in all the three countries. It was but natural justice, and on the question of principle he saw no reason why the Bill should not pass. It was a principle of English law to treat foreign judgments as prima facie evidence of a debt; but he could not consent to apply the principle of the Bill to Scotch judgments, the law of Scotland being substantially different from that of England. But the law of Ireland differed not from that of England, and was administered in the same way. Therefore, why should not an Irish judgment be enforced in England, or vice versa? There was perfect reciprocity in the Bill, and the judgments of the two countries ought to be placed on the same footing. The Act 1 & 2 Vict., c. 110, which introduced new provisions into the law as to judgments, made a judgment a charge upon real estate; and if the debtor had lands in Ireland, why should not those lands be bound? Why should not the creditor have the utmost facility for enforcing the judgment in the most speedy manner in Ireland? That was the great principle of the Bill; and if it was not necessary it could do no harm, while if necessary its rejection would be a serious mischief, With regard to the objections against the Bill, so long as a man allowed a judgment debt to remain unpaid he could not complain of proceedings against him to recover it—proceedings which were no doubt always disagreeable to debtors. With respect to the abolition of security for costs, he (Mr. Malins) agreed with his hon. and learned Friend (Mr. Whiteside); but it was a mere matter of detail, and was no reason for rejecting the Bill on the second reading, founded, as it was, on justice and common sense.

THE LORD ADVOCATE

said, that those who objected to the Bill did so rather on account of certain anomalies in the Scotch law, than on account of the principles of the Bill. But this was not a Scotch measure, nor did it owe its origin to Scotch lawyers. It was founded upon large general principles of jurisprudence, and had the support of many lawyers who had been educated according to the English system. It was supported by the Law Amendment Society and by Lord Brougham, whose efforts in the cause of enlarged legal reform it was unnecessary for him to praise. It was no attempt to do something for the benefit of Scotland or the Scotch, for, while it enabled Scotch creditors to recover debts in England and Ireland, it gave equal facilities to English and Irish creditors in Scotland; and, as England was the larger and richer country, was, as it were, the wholesale dealer, while Scotland was the poorer country, it was probable that the number of debts recovered by English creditors in Scotland would largely exceed those recovered by Scotch creditors in England. The principle of the Bill was that the debtor should be obliged to pay his debt, whether he were found in England, Scotland, or Ireland, upon a judgment duly registered. He did not think that the principle of the Bill could be more clearly and strongly explained than it had been by the hon. and learned Member for the city of Oxford (Mr. Neate). The three kingdoms of England, Scotland, and Ireland had three systems of jurisprudence, or at least three separate jurisdictions, and, so far as the decrees of their courts were concerned, stood to each other in the relation of foreign countries. That this was not only an anomaly, but a discredit to our jurisprudence, it was needless to prove. It appeared to him that the remedy for this state of things was entirely a matter of detail, that the principle of this Bill must be admitted, and that about its second reading there could be no question whatever. The hon. and learned Member for Wexford (Mr. M'Mahon) had made some very strong observations in regard to the law of Scotland. He was glad to find that the hon. and learned Member had commenced the study of that system, and was quite certain that a little more know- ledge would induce him entirely to change his opinion of it. With that view, he would recommend him, instead of reading books about forms of proceeding, with which he was not conversant and which he had no opportunity of studying, to devote a little time to observing the working of the system in Scotland. He could assure him of a hospitable reception in that country, and he believed that he would find that the Scotch law contained some things which might with advantage be introduced into the law of England. He would find in Scotland a system of law to which the division of law and equity was unknown. He would find that the system of registry had been applied to lands for many centuries. He would find that ecclesiastical courts had long been abolished; that the principle of County Courts, only the other day introduced into England, had obtained for a long period of time; and that the Thirteen Judges not only sat at common law, but did all the work which in England was performed by the separate Courts of Chancery, Admiralty, and Bankruptcy, and the Consistorial Courts. The Scotch system, so far from being a barbarous system, was founded upon the civil law which obtained all over Europe as soon as it was civilized, and was transported directly from France into Scotland. No doubt the lapse of time and the commercial prosperity of England had built up here a system which, although not so well founded on principle, was to a great extent adapted to the situation and wants of the country, but he rather thought there were some motes to be taken out of that system; there were many fictions still maintained in the English courts which might well be abolished, and when the hon. I and learned Gentleman referred to the Act for the Amendment of the Mercantile Law of Scotland, he forgot that a similar Act was at the same time passed to amend the mercantile law of England; and as upon some subjects provisions of the law of England were incorporated with that of Scotland, so upon others provisions of the Scotch laws were incorporated with that of England. That was the spirit in which law reform ought to be pursued. It was the spirit in which this Bill had been framed, and he did not think that the system of either country would gain by the bandying of compliments such as those in which the hon. and learned Gentleman had indulged. Decrees made after citations, and decrees made in the absence of persons, under the Scotch law, could now be enforced in the courts of England, and if there were thought to be defects in the law of Scotland the proper course would be to amend that law; but these defects were no reason why a judgment held valid in Scotland should not be held valid in Ireland. One good effect of this Bill, if it passed, would be to call public attention in all the three kingdoms to the defects and anomalies which might exist in the legal system of any one of them. The chief defect in the law of Scotland was the principle of founding jurisdiction upon arrestments; and he thought that if this Bill passed, it would be a good opportunity for considering whether that mode of founding jurisdiction should continue. The hon. and learned Member for Enniskillen (Mr. Whiteside) had referred to two or three matters connected with the working of this measure as between England and Ireland; but these were matters of detail, and ought not, in his opinion, to prevent the Bill being read a second time, and thereby the principle affirmed that creditors were entitled to obtain satisfaction of their judgment in whichever country their debtors might possess property.

MR. NAPIER

said, he did not intend to draw distinctions between the laws of the three countries, or to give an opinion as to the Scotch law, because, always being treated as foreign law, he had not given sufficient attention to it to enable him to do so. But the very fact of the laws of one country being considered as foreign in the others was an objection to the present Bill; because, up to a certain point, the three laws were still kept distinct; beyond that point they were dealt with as though they were only one jurisdiction. It was when judgment was signed and execution issued that it was most desirable to keep the jurisdictions separate. The Bill applied to all judgments, whether adverse or by confession, and this opened the door to fraud by giving facilities for collusive judgments, and the defeat of honest creditors. There were often matters of account between creditors and debtors after judgment was entered up, and no opportunity would be afforded to the debtor to know how the accounts stood. The purposes of justice required separate jurisdiction before judgment, and equally required such separation of jurisdiction afterwards. He felt bound to oppose the second reading of the Bill.

MR. HADFIELD

said, he was surprised that the Irish Members should oppose the Bill, as Ireland would derive more advantage from the Bill than either of the other two kingdoms. He would earnestly support the Bill, and trusted that the House would at last accept it.

MR. STEUART

said, he would support the Bill, as he thought it would remove an anomaly in the present system, although there were certain details which he should wish to see amended.

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

The House divided—Ayes 137; Noes 99; Majority 38.

Main Question put, and agreed to.

Bill read 2°, and committed for Wednesday next.