HC Deb 03 August 1859 vol 155 cc883-5

Order for Committee read.

House in Committee.

(In the Committee.)

Clause 3.

MR. ROLT

said, he would suggest that the clause should be omitted, as it was a mere idle piece of legislation. It proposed to deal with acts implying waver of covenant, but it was impossible to deal with that matter by legislation. It must be left to the Courts to decide what was the effect of particular Acts.

MR. MALINS

said, he concurred in thinking that it would be better to omit the clause.

MR. WALPOLE

said, that this and the other clauses had been carefully considered in Committee of the other House of Parliament, when all the law Lords were present, but he would not press the clause after the expression of opinion that had taken place.

Clause withdrawn.

Clauses 4 to 16 inclusive agreed to.

Clause 17.

MR. ROLT

said, he thought this and the four following clauses, which gave devisees in trust the power to sell estates for payment of debts, related to matters of so much importance that they ought to form the subject of distinct and separate legislation. Besides, the matter was already settled by decisions of the Courts.

MR. MALINS

said, that the law as now laid down was in complete accordance with the propositions contained in this and the following clauses, and he strongly objected to the principle of introducing into a Bill clauses declaring that to be the law which every practitioner of any experience knew, according to the ruling of the courts, was the law at present.

MR. WALPOLE

said, he believed this clause, and the subsequent clauses to which his hon. and learned Friends had referred, constituted a very valuable portion of the Bill. In his opinion those clauses would have the effect of saving consider- able expense, and he felt bound to press them.

THE SOLICITOR GENERAL

said, he hoped that his right hon. and learned Friend would not abandon these clauses, for the object of the Bill being to facilitate purchases, he thought it was important that they should have a statutory declaration of the law, instead of relying merely upon certain decisions of the Courts.

MR. ROLT

said, that if the clause remained, some proviso ought to be added to guard against injury to titles; as otherwise the clause might cast a doubt on the existing law.

MR. WALPOLE

said, if the hon. and learned Gentleman would bring up such a proviso upon the Report, he should not object to it.

Clause agreed to, as were also Clauses 18 to 24 inclusive.

Clause 25, No judgments, &c. shall bind a purchaser unless execution has been issued.

MR. MALINS

said, that this clause raised the question whether a judgment ought or ought not to be a charge on land. That was a fair question for argument. In the case of personal property, such as chairs and tables, a judgment was no charge, and the property could only be taken when the judgment was executed. In the case of land, a judgment, being duly registered, was a charge. Now either this ought or ought not to be. But the Bill took a middle course, and provided that a judgment should not bind the land until execution issued. This was a most mischievous state of things. The Bill ought either to enact that the judgment should be no charge at all, or it ought to leave the law as it stood.

THE SOLICITOR GENERAL

said, that the suggestion that the lien of Judgments upon landed property was too important to be dealt with incidentally. Certainly as it stood the clause would act very oppressively in the case of creditors to the Crown. It would force the Crown to execute judgments against Crown debtors which were now not enforced.

MR. WALPOLE

said, he could not but admit that the clause was unsatisfactory.

Clause withdrawn.

Clause 26, agreed to.

Clause 27 struck out.

Clause 28 agreed to.

Clause 29, Punishing vendors as misdemeanants for fraudulent concealment of deeds.

MR. HADFIELD

said, he would move the omission of the clause, as being unnecessary and calculated to work mischief.

COLONEL FRENCH

observed that he would support the clause, although he held that it did not go quite far enough.

MR. WALPOLE

said, the clause was important, and ought to be retained. Its object—obviously an unobjectionable one—was that any seller or his solicitor who concealed any instrument material to the title, with intent to defraud, should be deemed guilty of misdemeanor.

THE SOLICITOR GENERAL

said, he approved the clause, with certain modifications in its form. It only extended to sellers a principle already applicable to trustees.

MR. ROLT

suggested that mortgagors of land should be included as well as vendors.

MR. MALINS

said, he might illustrate the necessity for that provision by reference to a case which had recently occupied the Court of Chancery for ten days.

MR. MURRAY

recommended that the clause should be extended to all equitable deposits of deeds.

Clause agreed to, on the understanding that it should be amended on the Report,

Clause 30 agreed to.

MR. HADFIELD

said, he would move the following clause:— Where a trustee, executor, or administrator shall not be authorized, but shall not by some instrument creating his trust be expressly forbidden, to invest a fund forming a subject of his trust upon mortgage of freehold, copyhold, or leasehold estates within the United Kingdom, or upon the stocks, bonds, or debentures of the Bank of England or Ireland, or on India stock, it shall be lawful for such trustee, executor, or administrator so to invest such fund; and such trustee, executor, or administrator shall not be liable, as for a breach of trust, in respect of such investment already made, or hereafter to be made.

Clause brought up and read 1a and 2° and agreed to.

Bill reported, with Amendments.

House resumed.