§ Order for resuming further consideration of the Lords' Amendments read.
§ Clause 2 (Appointment of Chief Judge),
THE ATTORNEY GENERALsaid, he presumed, after the decision arrived at the other night for restoring the clauses relating to the appointment of the Chief Judge, that the House would not think it necessary to discuss at any length the other subsidiary Amendments consequent upon that change. He would, therefore, merely move that the Lords' Amendments to Clause 2 should be disagreed to.
§ SIR HUGH CAIRNSsaid, that as the House had already decided to disagree with the Amendments relating to the Chief Judge, it would not be necessary to raise any discussion upon the other clauses which related to that point.
§ The Lords' Amendments disagreed to.
§ Clause 21 (Official Assignees),
THE ATTORNEY GENERALsaid, he was not aware of the reasons which had induced the Lords to make an increase in the number of the official assignees from five to eight. Each official assignee was to receive £1,000 a year, in addition to an allowance of some £700 for clerks, offices, and other expenses. As the provisional assignee of the Court for the Relief of Insolvents would, by the 26th Clause, be constituted an official assignee of the Court of Bankruptcy, if the present Amendment of the Lords were agreed to, and eight were substituted for five, the number of official assignees in London would, in fact, be increased to nine. That would, he thought, be entailing useless expense on the country, the principle on which the Bill had originally proceeded being that there should be one official assignee to each Commissioner. He, therefore, begged to move that the Lords' Amendment be disagreed to.
MR. MONTAGUE SMITHsaid, the Bill originally established creditors' assignees, and the Lords thought it was better that a bankrupt's estate should remain in the official assignee, and they accordingly made the Amendment in question. He would suggest that it would be better to defer the discussion of the Amendment until the subject of creditors' assignees came before the House.
§ SIR HUGH CAIRNSsaid, the Government had given notice of two cardinal points on which they proposed to disagree with the Lord's Amendments. The one referred to the Chief Judge, which had already been settled, and the other, which had still to be determined, referred to the official assignees. The House of Lords had regarded the Bill, in the shape in which it went up to them, as defective, because it took away from the official assignees a considerable amount of the business which they had hitherto transacted. The present Amendment had been introduced by the Lords in consequence of the general view they took with respect to the official assignees. It would, therefore, be more convenient now to discuss and dispose of the whole question relating to official assignees, as that question was raised by the present Motion. He thought the House of Lords had hit a blot in the Bill that was not sufficiently considered when the measure was passing through that House; and he was quite willing to take any share of responsibility which might attach to him on that account, for he freely confessed that when the Bill went up to the other House, he had not considered the inconvenience of the course which was suggested by the measure in regard to the duties of the creditors' assignees. Hitherto all bankrupt estates had been vested in the official assignees and the creditors together, who acted through one and the same solicitor in realizing the whole of the estate and dividing it among all the creditors. No doubt there had been a great deal of complaint in the commercial world on the subject of the official assignees. But the House must endeavour to see what was the origin of that complaint. It did not originate because the official assignees did not do the business properly, or collect the debts and divide the assets with rapidity among the creditors, but rather because the official assignees were entitled to take a very large percentage from the sums recovered, and thereby the amount divisable among the creditors was very much diminished. Those objections were got rid of by the Bill, because it placed the official assignees upon salaries instead of percentage, the five official assignees in London receiving £1,200 a year, reducible to £1,000, and those in the country £1,000 a year, reducible to £800. The Bill also provided that a bankrupt's estate should at first be vested in the official assignee, but that when the creditors' assignee was appointed all con- 1302 trol of the estate should be taken from the official assignee, except that he was to collect the debts due to the bankrupt under £10, while the debts of a larger amount would be collected by the creditors' assignee. In the House of Lords exception had been taken to that arrangement, and it was urged that the consequence would be that the official assignee and the creditors' assignee would have to employ separate solicitors, of course entailing upon the estate two bills of costs. Another difficulty would arise from the proposed arrangement. The official assignee would require the bankrupt's books to enable him to collect the debts under £10, while the creditors' assignee would want them for the purpose of collecting the larger debts. That state of things would lead to inconvenience and antagonism, as well as to confusion and expense. There was an idea which was prevalent in the commercial world that if the Lords' Amendments were agreed to there would be no mode by which the creditors could get rid of the official assignee if they desired to place the management of an estate in the hands of trustees selected by themselves. That, however, was a mistake, because under the arrangement clauses any body of creditors desiring to wind-up an estate without the assistance of an official assignee could do so. But he would ask whether it was judicious to have five official assignees at £1,200 a year, and seven or eight at £1,000 a year, solely to collect debts under £10? It might be said, on the other side, that official assignees might be chosen as trustees by the creditors; but if that were so, he thought those officers should stipulate for their remuneration with those who employed them. The suggestion that they might be sometimes chosen as trustees by creditors rather militated against the assertion that official assignees were extremely distasteful to the mercantile community. He submitted, therefore, that there was much force in the opinions expressed by the House of Lords; but, looking at the period of the Session, and considering that the point was not absolutely essential to the success of the measure, he should not invite the House to divide in opposition to the hon. and learned Attorney General's Motion.
§ MR. MALINSsaid, that from the first he had doubted the prudence of getting rid of the official assignee, as he was of opinion that it would be a great advantage to have an official person to collect the debts and manage the estate of a bankrupt. He be- 1303 lieved, however, that the official assignee would be bound to employ the solicitor of the creditors' assignee, and, therefore, the inconvenience to which his learned Friend referred would not arise. As the Amendment of the Lords referred to a matter of detail which had been fully considered by the Lord Chancellor, he thought that upon the whole the wisest thing would be to restore the Bill to the state in which it left the House of Commons.
§ MR. HADFIELDsaid, it would be very easy at a subsequent period to increase the number of official assignees if it should be necessary, but he believed that under the Bill there would be less for them to do than at present.
§ MR. VANCEsaid, he regretted that his hon. and learned Friend did not intend to take the sense of the House upon the question. At present the largest creditor was usually chosen assignee, but that could not be the case under the Bill, and the management would probably be left to persons who had not much interest in the good management of the estate. The Chamber of Commerce of Leeds had observed that the clause vesting the estate in the creditors' assignee deserved serious consideration.
§ MR. W. E. FORSTERsaid, that the manufacturing districts of Yorkshire were opposed to the Amendments of the Lords, and desired to restore the measure to the shape it was in when it originally passed. They trusted, however, that the House would not restore the clauses in such a shape as to too strongly fetter the creditors; assignee.
§ MR. MURRAYsaid, he wished to state the reasons why he disagreed with the Lords' Amendment in reference to the official assignees. He remembered when there were eighteen in London, three being attached to each Commissioner, of whom there were six. By deaths and resignations the number of the official assignees became reduced to ten, and subsequently to eight; and he thought that it would be sufficient if one official assignee was attached to each Commissioner. In fact, during the whole of last year and the greater part of this, in consequence of the decease of two of the official assignees, the whole business before two of the Commissioners in Basinghall Street had been transacted by one official assignee attached to each Court. He had concurred in thinking that it would be imprudent to give the official assignee a fixed salary of £1,200 per annum, but 1304 that in accordance with the Bill proposed in last Session, and the evidence given before the Royal Commissioners, it would be sufficient if the official assignee had £800 a year secured to him, and that whatever he had in addition should be due to his personal exertions; the House, had, however, determined that he should have a fixed salary of £1,200 a year. As a matter of practice, in all estates which were under inspectorship there was no difficulty in obtaining the assistance of gentlemen and merchants to act as inspectors or trustees, but they would not act as creditors' assignees with the official assignees. He thought the time was come when the creditors should take the management of the estates of bankrupts into their own hands and wind them up themselves, the expenses incurred under the present system were far greater than any bankrupts' estate ought to bear. There was no proper audit of the accounts by the Commissioners. He could state to the House that in one case an official assignee was allowed and paid £4,802 for his services rendered between Sept. 15 in one year and July 19 in the next. His accounts were audited and allowed by the Commissioner; some months afterwards the accounts were looked into, and then it was found that the ingenuity of the official assignee had been most extraordinary. In the course of his duty he had to receive from the Admiralty a debt of £8,668 due to the bankrupt. The Admiralty paid him at once in three bills of £3,668, £3,000 and £2,000. Regarding the transaction as a single debt, the official assignee would have been entitled to have received according to the scale prescribed for his remuneration £58 6s. 10d.; treating it as three debts, he would have been entitled to £73 6s. 10d. The transaction had reference to an order given by the Admiralty to the bankrupt for five mortar boats, four dispatch boats, and four gun boats, in all thirteen; so the official assignee ingeniously apportioned the sum of £8,668 among these thirteen vessels, making thirteen debts instead of one, and by this mode he increased his remuneration to £215 3s. 8d. On the matter being subsequently explained to the Commissioner, and the accounts examined, it appeared other overcharges had been allowed, and the result was the official assignee had to refund to the estate £2,546, he being allowed for his services £2,256 instead of £4,802, the amount previously paid. He could state 1305 another case, in which an official assignee charged for services during four months a sum of £2,681 1s. 8d. On investigation it was found he had overcharged the estate £1,699, and he was only paid a sum of £981. He thought these were strong reasons why the creditors should have an opportunity of looking into those matters themselves. It had been said that the examination of accounts in 1831 showed that the creditors' assignees were everything but honest men, but he thought much about the same state of things prevailed now as in 1831. He believed it had been said that when the official assignees took office in 1831, they secured about £2,000,000, which the creditors' assignees allowed to remain in private banks instead of distributing it to creditors. He thought if a change took place now about the same result would be found—the only difference being that instead of the money lying at private bankers it would be found in the Bank of England. There was, he believed, now nearly £2,000,000 in the Bank of England which should have been distributed. He did not see how, if the official assignees had done their duty to the creditors, there could have been so large a sum as that, and he did not think creditors' assignees could have done worse. Under the management of official assignees creditors were apt to fancy that everything was being done that ought to be done, whereas estates were very much neglected, and the interests of creditors left to suffer. On these grounds he was opposed to the Lord's Amendment. He entirely approved the appointment of a Chief Judge, and had voted for restoring the clause struck out by the other House. The Chief Judge, if he were appointed, would exercise a supervision over the conduct of the officers of his court like that exercised by the Vice-Chancellors over the chief clerks of their office. At present there was no control or supervision. He hoped the House would place the Bill in such a form that it might be rendered satisfactory to the mercantile community, for without that the Bill would be of little avail.
MR. GLYNsaid, the feeling of the mercantile community in the City of London was strongly against allowing the management of the assets in bankruptcy to pass into the hands of official assignes. They would no longer tolerate such a system. Although there had been the greatest legal difficulty in carrying out arrangements by means of trustees, creditors had exposed 1306 themselves to those difficulties rather than allow assets to fall into the hands of the Bankruptcy Court. He thought the objections which might be raised to the power given to the creditors' assignees entirely obviated by the clauses which gave to the official assignees a new character. They were now to assume that of auditors, whose duty would be to look after the proper distribution of the assets, and to watch the operations of the creditors' assignees. In that capacity they might be of considerable utility; he, therefore, assented to the proposition of their being put upon a fixed salary. But if they were to be the collectors of all the debts and dispensers of all the assets, nothing could be more preposterous than to put them on a fixed salary, as their only stimulus to collect debts with efficiency would be the percentage they received. Statements had been made in that, soon after the official assignees were appointed, under the Act of 1831, the sum of £2,000,000 was recovered from private bankers. When the word "recovery" was used, it might be supposed that but for the official assignees that money would never have been distributed. But the fact was that the greater part of that money was at the time in process of being distributed, and that, so far from assisting that process, the Act of 1831 caused a postponement in the distribution of some of those assets. The amount of assets not distributed and now held by the Court of Bankruptcy, was by the Return before the House, nearly as large—indeed, it was perhaps unavoidable under any system. He did not deny that certain creditors' assignees had misconducted themselves formerly, but by the clauses of this Bill securities would be taken for the proper discharge of their duties and for an efficient check upon them.
§ MR. AYRTONsaid, that there was nothing upon which bankruptcy reformers were so fully agreed as the necessity of restoring to the creditors the right of managing the estates in which they were interested, leaving to the official assignee the duty of auditing the accounts of the creditors' assignee.
THE ATTORNEY GENERALsaid, that the question immediately before the House had reference to the 21st Clause; but if it was wished to discuss the question as to creditors' assignees, he desired to make one or two observations. The official assignees, as was well known, were brought into existence by the Act of 1831, the in- 1307 tention being that they should co-operate with the creditors' assignees, but it turned out that, virtually, the latter was almost entirely supplanted by the former. The evils connected with the carriage of insolvent estates by creditors' assignees were no doubt considerable, but in endeavouring to avoid those evils they fell into others. The creditors' assignees were not subject to a proper audit, and, no doubt, they neglected their duty; but the appointment of official assignees, while it had superseded the old system, had not removed the evil. It had been found that although the official assignee collected the whole of the debts and had the management of the funds of a bankrupt's estate, yet that, in point of fact, there was no proper audit. The accounts of the official assignee were audited in point of form by the Commissioner, but the Commissioner had not such a knowledge of matters of business as would enable him to discharge that duty satisfactorily. What had been the consequence? The hon. Member for Newcastle-under-Lyme (Mr. Murray) had informed the House of some cases which had occurred and been discovered. It might very well be supposed that similar conduct had been pursued in numerous other instances which had escaped detection. But from a return in 1858, as to official assignees, it was shown that four in London and one out of London had been defaulters, and the House would probably be surprised to hear that the amount of their defalcations was a sum of not less then £110,000. The creditors' assignee it was to be observed would bring to the fulfilment of his duty a commercial knowledge and personal interest in the matter, which would greatly tend to ensure the efficient administration of an estate. The official assignee would be retained with certain duties, one of which was that of a constant and vigilant supervision and audit of the accounts of the creditors' assignee; and he thought it might be fairly anticipated that, the creditors' assignee being appointed by the creditors themselves, and acting under the supervision of the official assignee, the abuses formerly complained of would cease to exist. That a very general desire was felt, on the part of the mercantile community, that this portion of the Bill should be passed would be evident from the fact that petitions had been presented from Belfast, Birmingham, Bradford, Coventry, Gloucester, Hull, Sheffield, Southampton, Wolverhampton, Sunderland, and other 1308 places, all of which were unanimous in favour of the appointment of creditors' assignees.
§ MR. BOVILLsaid, that official assignees had been appointed because it was found that creditors' assignees did not perform their duties. This matter was fully considered on the second reading, and as various mercantile bodies had expressed a strong feeling for the clauses which passed that House he should not oppose their restoration to the Bill. The memorials which had been referred to, however, represented no doubt the opinions of those who would be interested in the management of large bankrupt estates; but, as the Bill would now bring under the operation of the bankruptcy law estates ranging from £5 to £30, it would be a strange mixture of things if there were to be two different sets of assignees to collect the debts. It must necessarily much increase the expense. He would suggest, instead of saying that all debts under £10 should be collected by official assignees, and all above by creditors' assignees"; that the creditors in every case should determine the amount up to which the official assignees should collect debts. Such an alteration would obviate many of the objections with regard to the employment of creditors' assignees.
MR. HENLEYobserved that, as it was the wish of the House that the general question should be decided on that clause, he was disposed to agree with the Government and to disagree with the Amendment of the Lords. He thought it was impossible for anyone who paid attention to what passed not to know that the commercial body wished to get rid of the official assignee to a great extent, to have a greater facility for making their arrangements, and if they thought that they could manage their affairs better than they lawyers he did not see why they should not be allowed to do so.
§ Lords' Amendment disagreed to.
§ On the Clause substituted by the Lords for the 97th Clause.
§ SIR FITZROY KELLYsaid, he wished to call the attention of the House for a few moments to the effect of that clause, which, though with some reluctance, he felt constrained to move that the House should disagree with, and which, entirely ignorant as he was of the reasons which had induced their Lordships to insert the clause, he professed his utter inability to comprehend. The Bill as it stood enabled every debtor, whether trader or nor-trader, to pe- 1309 tition the Court for an adjudication of bankruptcy against himself; but the Amendment introduced by the Lords went to this effect—that no debtor who was not able to show assets to the amount of £150 should be allowed to petition for an adjudication in bankruptcy. It was impossible to imagine any reason for the distinction. As the law at present stood any debtor who was unable to pay his debts, whatever the amount of his assets might be, was entitled to apply to the Court for Relief of Insolvent Debtors, and by giving up his property he was able to obtain relief. But if the Bill were to pass, a debtor—whether a trader or non-trader, who was unable to pay his debts—it might be from the most unforeseen misfortunes, from a fire, or from the failure of other parties, if he could not show assets to the amount of £150, would not be allowed to petition for an adjudication of bankruptcy; but if he were sued by a creditor would be thrown into prison, and might remain there a prisoner for life. It was true that by the 112th section of the Bill a power was given to the registrar to visit the prisons, to examine the prisoners that he might find confined for debt, and if he thought fit, to release them; but the House would observe that the exercise of that power was entirely optional on his part, and that the provisions were at variance with the general tenor of the Bill. He hoped, therefore, that the House and the Government would concur with him in the opinion that that was not a provision that ought to remain in the Bill, and he moved that the House disagree with the Amendment.
§ MR. MALINSsaid, he would second the Motion. If the Bill were allowed to pass with the clause as it stood it would entirely deprive small debtors of the benefit of the Act.
THE ATTORNEY GENERALsaid, he entirely agreed with the objections of his hon. and learned Friend. Indeed the objections to the clause as it stood were so obvious that he could only attribute its insertion to some oversight, or, at any rate, to the want of due consideration. Its effect would be that, even on the most favourable consideration, a debtor who was unable to show assets to the amount of £150 would have to be in prison at least five or six weeks before he could obtain his discharge. He did not believe that could be the intention of their Lordships, and he would very cordially support the Amendment.
§ MR. BOVILLsaid, he believed the in- 1310 sertion of the provision had arisen in this way. By the law of bankruptcy, as that law once stood, no man was entitled to be declared a bankrupt whose estate would not yield 5s. in the pound. That was felt to be a hardship, and an alteration was made requiring the debtor to show assets to the amount of £150. It was probably the recollection of this provision that induced their Lordships to insert the present clause, which he cordially concurred with his hon. and learned Friend in thinking that the House should disagree with.
§ MR. HADFIELDsaid, he was afraid that if the clause were removed the machinery of the Bill would often be set in motion, and great expense incurred, which there would be no assets to defray. He was not favourable to imprisonment for debt, but he did not think the mode proposed by hon. and learned Gentlemen would remove the difficulty.
THE SOLICITOR GENERALsaid, he would admit there was some weight in the argument of the hon. and learned Member for Sheffield; but if any inconveniences arose from the course proposed they must trust to experience to amend them.
§ Lords' Amendments disagreed to.
§ Clause 10 (Debts contracted before the Act not to support an adjudication in case of a non-trader),
THE SOLICITOR GENERALstated that paragraph C had been inserted by the Lords with respect to debts contracted or liabilities incurred after the passing of the Act, on which considerable difference of opinion prevailed; but with a view to the passing of the Bill he was not disposed to ask the House to disturb the principle of that Amendment. The Lords, however, appeared to have overlooked the fact that, by the law as it now stood, if a debtor not a trader lay in prison, any execution creditor was at liberty to apply by petition to the Insolvent Debtors' Court and obtain a vesting order, the effect of which was to vest all the present and future estate of the debtor up to the time of his discharge, real and personal, in the assignee of the Insolvent Debtors' Court, to be administered for the benefit of creditors. He proposed after the word "trader" to insert these words: "And not being at the time a prisoner against whom the creditors would be entitled to obtain a vesting order in insolvency if this Act had not passed." With a view to carry into effect the object of the Lords in this clause, he would also add a proviso to the 164th Clause, to the 1311 effect that no person shall be liable, by virtue of this Act, to any criminal charge or penalty in respect of any matter which may have occurred before the passing of the Act to which he would not have been liable if this Act had not passed. He had had the advantage of communicating these Amendments to his hon. and learned Friend, the Member for Belfast, and he was authorized to say that he had no objection to them.
MR. HENLEYsaid, he had taken great interest in that part of the Bill, and he must say that he thought the proposal of the hon. and learned Gentleman quite a fair one. He had not heard of the proposition before, but he thought it a just and equal one, as it left all parties—if he might call them so—exactly as they were before the Bill passed, and that was all he contended for. He hoped his hon. and learned Friend (Mr. Malins) was not about to renew the discussion they had before on this subject. They were all perfectly satisfied with the conclusion to which the Government had come, when the hon. and learned Member took advantage of the House being at dinner, moved his clause, and carried it in a thin House.
§ Amendment agreed to.
§ MR. MALINSsaid, the opinion of the right hon. Member for Oxfordshire had always great weight with him, and he never differed from him without distrusting his own judgment. But he had given great deliberation to the matter, and he felt he should not discharge his duty if he did not move that the clause be disagreed with. As what had taken place in that House on the 101st Clause of the Bill had been misrepresented by a noble and learned Lord in "another place," he wished to state what had actually occurred. That clause provided that no nontrader should be made bankrupt in respect to debts incurred previous to the passing of the Bill. In Committee he opposed that clause, but the attendance in the House was then thin, and he did not divide against it. He, however, gave notice that on the Report he would move that the clause be expunged. The question was then fairly discussed in an average House, which was not in a state of syncope, as had been represented; and instead of the hour being the dinner hour, it was at 9 o'clock. On the question being put by the Speaker there was not a single voice for the clause. So far from it being the fact that the then Attorney General "threw away his scabbard," that eminent 1312 authority said that the clause would have the effect of preventing the present generation from enjoying the benefit of the proposed change in the law, and with his full consent it was struck out. The hon. and learned Member for Belfast afterwards attempted to undo what had thus been done by proposing, in the interpretation clause, that a nontrader's debt should mean a debt contracted after the passing of that Bill. On a division taken at eleven o'clock, the hon. and learned Member for Belfast's proposal was rejected, the numbers for it being 125, and those against it 150. When the Bill was before the Select Committee of the House of Lords an unsuccessful effort was made to restore the 101st Clause; although, subsequently, in a Committee of the whole House, upon an erroneous representation of what had taken place on the subject in the Lower House, the clause was reinserted. That clause would enable a rich debtor to set his creditors at defiance and to keep his property while his debts remained unpaid. It was said that it would be unjust to allow the new remedy which that Bill would afford to creditors to be available against non-traders for past debts; but a distinction of that kind had not been admitted in the analogous cases of Lord Eldon's and Lord Hardwicke's Act for bringing new classes of persons under the bankrupt law, nor in the case of the Act 3 & 4 Will. IV. c. 104, making real estate assets for the payment of simple contract debts. The principle was plain, that no man had a vested right in dishonesty, and, therefore, he said that a nontrader, with ample property to meet his debts, ought to be made to pay them, and the law should hold out no inducement to him to remain abroad in order to evade payment. He was inclined to move the rejection of the clause, if he thought he could obtain the general support of the House. The question was placed in rather a singular position. The noble Lord at the head of the Government had stated that he proposed to disagree from two of the chief alterations made by the Lords in the Bill, but with respect to that particular clause he had no proposal to make. He (Mr. Malins), however, did not understand that the Government had at all changed their views upon this point, and the present Lord Chancellor certainly held a strong opinion upon it. He should take the opinion of the House, and, therefore, moved that the Lords' Amendment be expunged.
MR. HENLEYsaid, he thought his hon. and learned Friend had omitted one important circumstance from his consideration. In former Sessions of Parliament there was great difference of opinion about introducing any non-trading clause at all. When the present Lord Chancellor introduced the Bill he distinctly stated on the part of the Government that they had come to the conclusion that it was right to have what was called the "retrospective clause" in the Bill. When the Bill was brought in it did contain this 101st clause. It was a highly technical matter, and could any one believe that when that statement had been formally made on the part of the Government, and the clause actually inserted in the Bill, that the Attorney General, upon the suggestion and after the speech of the hon. and learned Member for Wallingford alone, would have thrown the whole matter up. Every one knew that nine o'clock was about dinner time, and the House was generally thin at that time. His hon. and learned Friend referred to what had been attempted to be done upon the interpretation clause by the hon. and learned Member for Belfast, but it could not be expected that the House would, on the same evening, undo what it had just done with all the strength of the Government on one side. The instances referred to by the hon. and learned Gentleman hardly applied in the case, because until lately the law of bankruptey had been regarded as one in favour of the trading classes, in mitigation of the common law of debtor and creditor, and, therefore, it was not the same thing to bring new classes within the operation of a new and stringent law. He hoped the Government would support the clause as recommended by themselves, and that they would not, by agreeing to the proposition of the hon. and learned Member for Wallingford, endanger the passing of the Bill.
§ MR. VANCEsaid, that a considerable alteration had been made in the mode of service of non-traders who might be abroad, constituting a very considerable relaxation in their favour. It was in consequence of the alteration that had been made in the mode of service, making it personal instead of substituted, and also in consequence of the advantages they obtained during the progress of the Bill, that the hon. and learned Attorney General agreed to the proposition by the hon. and learned Gentleman (Mr. Malins). He thought the adoption of the proposition would tend to 1314 the purification of that House. The Session before last, the House refused to place its own Members on a level with the rest of the community in regard to the law of arrest; but, if that were done, they would get rid of some Members to whom objection was very properly taken, because they did not pay their debts. It would force persons in high positions, who defied their creditors, to liquidate the claims upon them.
§ MR. HADFIELDsaid, he hoped the hon. and learned Gentleman would take the sense of the House on his proposal. It was outrageous to make a distinction between traders and non-traders in regard to the moral obligations to pay their debts.
THE ATTORNEY GENERALsaid, he would remind the House that when his noble Friend at the head of the Government stated the course which the Government intended to take with regard to the Lords' Amendments, he observed that, with respect to the particular Amendment now under discussion, they had no proposal to make. In consequence of that statement, and the hon. and learned Member (Mr. Malins) having given no notice of his intention to bring the subject forward, he believed many hon. Members were now absent under the impression that the decision arrived at by the House of Lords was not to be disturbed. In these circumstances, and looking at the thinness of the House, he could not with propriety accede to the proposition of his hon. and learned Friend. He would say nothing as to the soundness or justness of his views; but would simply state his belief that if this Amendment were disagreed with the Bill would be lost, and legislation on that important subject would be put off for an indefinite period.
MR. MONTAGUE SMITHsaid, his hon. and learned Friend (Mr. Malins) assumed that every person who incurred debts and went abroad, went there to spend, whereas a great many persons so encumbered were nursing their estates for the benefit of their creditors by living abroad. Many owners of large estates who had fallen into the hands of designing speculators, and who had gone abroad, would be liable if the clause were made retrospective to be made bankrupts—a liability which, when they formed these arrangements, they could never have contemplated. The measure was in its nature penal, and to make it retrospective was a violation of the first principles of the law of England. He should vote with the Attorney General.
§ Mr. ALDERMAN SIDNEYsaid, that the House had twice disaffirmed the clause, and he regretted that the hon. and learned Attorney General now asked the House to stultify its former votes.
§ MR. WALPOLEsaid, he would recommend the House not to admit that hon. Member who voted against making the law retrospective wished the debts of non-traders not to be paid. He looked upon the Bill as a great benefit to the non-traders. The Bankruptey Law was passed for the benefit of the trader, and the non-trader remained liable to be detained in prison until his debts were paid. While the bankrupt obtained a clear discharge, and might begin the world again unencumbered, the future property of the insolvent was liable for the payment of his debts. He objected to making the clause restrospective—among other reasons, because Parliament would be taken by surprise if the change were forced upon it. Moreover, the second reading of the Bill had been greatly facilitated by the pledge which had been given by the Government that that portion of the measure should not be retrospective, and he did not think that they ought to violate that pledge.
§ MR. MALINSsaid, that under all the circumstances of the case, and as he had not given notice of his proposal, he would not press it to a division.
§ Motion withdrawn.
§ Lords' Amendment agreed to.
§ Clause 119 (Meeting of Creditors),
§ Amendments agreed to.
§ Clause 134 (The Official Assignee to collect debts under £10),
§ MR. BOVILLsaid, he would propose to introduce words into the clause, giving permission to the official assignees to collect other larger sums with the assent of the creditors.
THE ATTORNEY GENERALsaid, he hoped the Amendment would not be pressed. If it were it would provoke further dissent from the Bill.
§ MR. VANCEsaid, he thought that the Amendment would be a great improvement. It left the dealing with the collection of debts more in the hands of the creditors.
§ MR. MURRAYsaid, he hoped that the 1316 House would not agree to the Amendment. It would only lead to jobbing. Every creditor would be canvassed by the official assignee to obtain permission to collect the debts of an estate.
§ Amendment negatived.
§ Lords' Amendment disagreed to.
§ Clause 164 (Criminal Prosecutions by order of the Court),
THE SOLICITOR GENERALsaid, he proposed the addition of the words "That no person shall be subject to prosecution under this Act for any offence for which they were not previously liable to prosecution."
§ Clause, as amended, agreed to.
§ Clause 200 (Trust Deeds),
MR. MOFFATTsaid, he would move that—
The House disagree with the Lords' Amendment in Clause 200, making the assent of three-fourths in number of the creditors necessary to the validity of any deed executed by a debtor, and that the clause be restored to its original shape by the insertion of the words 'a majority in number of the creditors representing three-fourths of the value.'
§ Motion agreed to.
§ Schedule,
THE ATTORNEY GENERALsaid, he should move that the House disagree with the Lords' Amendments in the third column, under Schedule G, which recited the Acts repealed by the Bill. The extent and nature of the repeal would depend on the shape the Bill would ultimately take, and, therefore, he hoped the House would leave to the Solicitor General and himself the task of seeing that the proper figures in reference to the schedules were duly inserted, and of making any other corrections.
§ MR. BOVILLsaid, he would suggest to the hon. and learned Gentleman, that a consolidation of the Bankruptcy Law should be undertaken as soon as possible, for the benefit of the County Court Judges who were to administer it, as many of them had no previous acquaintance with it.
§ Motion agreed to.
§
Committee appointed,
To draw up Reasons to be assigned to the Lords for disagreeing to the Amendments to which this House hath disagree:—Mr. ATTORNEY GENERAL, Mr. SOLLICITOR GENERAL, Sir GEORGE LEWIS, Sir GEORGE GREY, Mr. MURRAY, and Mr. MALINS:—To withdraw immediately; three to be the quorum.