§ MR. BRISTOWproposed the introduction of the following clause to follow Clause 138:—
No bankrupt shall, after an adjudication in Bankruptcy, be liable to any action at law or suit in equity (whether commenced prior or subsequent to such adjudication), for the breach or non-performance of any covenant or agreement entered into by such bankrupt in any existing lease or agreement for a lease.
§ Clause brought up and read 1o.
§ Motion made, and Question proposed, "That the clause be now read a second time."
THE ATTORNEY GENERALsaid, the state of the law upon the subject was that if a bankrupt had a lease it was competent to the assignees to decline to accept it. In that case the lease remained in the bankrupt, and he was still liable to all claims that might arise out of the covenants of the lease. That was rather hard. The clause, however, was imperfect, because if the assignees rejected the lease and the bankrupt was to be released from his covenants it ought to be surrendered to the lessor. He (the Attorney General) would take care that the subject should be considered in "another place" if the hon. Gentleman would agree not to press the clause at the present moment.
MR. HENLEYsaid, he hoped the hon. and learned Gentleman would look well to the clause, as it might well be that it would give the bankrupt a power to retain possession of the premises without paying rent. The clause provided that the bankrupt was not to be held liable for breach of covenants; and they all knew that the payment of rent was a material part of most covenants. It ought to be fixed that the lease should in all such cases be surrendered to the lessor.
§ SIR FITZROY KELLYsaid, he would suggest to the hon. Gentleman opposite that he should leave this matter in the hands of the hon. and learned Attorney General, who would either in that House or in "another place" introduce a clause to give effect to the principle which had been enunciated either here or afterwards in "another place." There was another point to which he wished to call the attention of the hon. and learned Gentleman, and which might be effected by the insertion of three words. It might happen that a bankrupt had borrowed money and insured his life, giving a bond to pay the premiums as a collateral security, The 162 bankruptcy would, of course, dispose of the debt; but unless some provision were introduced the creditor might still compel the bankrupt debtor to continue to pay the premiums, although he held the policy as security for a debt which no longer existed. Now, be thought that from both liabilities the bankruptcy of the debtor ought to free him, and that his hon. and learned Friend would do well to prepare a clause giving effect to that view.
§ MR. BRISTOWsaid he would, on the understanding that the hon. and learned Attorney General would attend to these points, withdraw his clause.
§ Motion by leave withdrawn: clause withdrawn.
§ MR. MALINSsaid, he would propose that the following clause should follow Clause 163:—
With respect to all persons heretofore bankrupt, and whose certificates of conformity shall hare been refused. it shall be lawful for the Court, at any time after the expiration of three years from the time of, and notwithstanding such refusal, to hear and determine the application of any such bankrupt for an order of discharge; and thereupon, if the Court shall think fit, to grant an order of discharge either absolute or subject to any condition or conditions, in the same manner as if the bankruptcy of such applicant had taken place after the commencement of this Act.According to the present practice of the Courts, one Commissioner would refuse five times as many certificates as another; and the Court of Appeal had no power to give relief where a Commissioner had refused a certificate. The consequence was that the greatest hardship had to be endured. He knew of a case where a gentleman who had been a partner in a bank had been unfortunate and he failed. The Court of Appeal was unable to reverse the decision of the Commissioner, although the only charge brought against the bankrupt was that the Bank had given credit too freely, and the result was the unhappy gentleman had been an exile during ten years, and was not in a position to do anything to earn a livelihood. He contended that, however great a man's crime might be, there was a time when he ought to be set free from the consequences of it. There was a term to the punishment of a felon, and he saw no reason why a bankrupt should not have his capacity to trade restored to him after the lapse of a certain period.
THE ATTORNEY GENERALsaid, the present Bill altered altogether the system of granting certificates, and, unless 163 something were done with regard to bankrupts who were now refused certificates, it would be impossible for them to make an application to the Court. He thought, therefore, that the proposed clause was reasonable and just, as well as merciful, and he had much pleasure in giving his assent to it.
§ MR. MURRAYsaid, the hon. and learned Member for Wallingford (Mr. Malins) had done a work of charity and mercy in proposing such a clause.
§ Clause agreed to.
§ MR. LEVESON GOWERmoved the insertion of the following clause:—
The Court out of the estate and effects of the bankrupt, shall order payment of all such parochial rates as may be due from him at the time of his being adjudicated a bankrupt.At present Queen's taxes were entitled to a priority in the distribution of a bankrupt's estate, but no provision was made for the payment of local taxes. The object of his clause was to do away with that distinction.
§ Clause brought up, and read 1o.
THE ATTORNEY GENERALsaid, if the hon. Gentleman would add to his clause the words "provided such rates shall have become due during the twelve months immediately preceding the bankruptcy," he had no objection to it.
§ MR. MALINSsaid, he thought the collector of rates should not have longer grace than a landlord, who was only entitled to six months' rent in cases of bankruptcy.
MR. HENLEYsaid, he also thought taxes and rent ought to go together. If six months were given to the landlord the same period should be allowed to the parish. He must say he thought six months would be a much fairer time than twelve months; because no parochial rates ran on for more than twelve months, at least they ought not. He should move to substitute "six months" for "a year."
§ SIR WILLIAM JOLLIFFEsaid, he hoped the Attorney General would adhere to his own proviso.
§ Amendment, by leave, withdrawn.
§ Clause read 2o, amended, and added.
§ MR. HADFIELDsaid, he would move a clause authorizing the trustee or assignee under any deed to sue in his own name for the debts and demands of the bankrupt or insolvent, and providing that the production of every such deed shall be evidence of the due execution thereof without further proof.
§ Clause brought up, and read 1o.
164THE ATTORNEY GENERALexplained that provision was already made by the Bill for effecting the object to which the first part of the Amendment referred. It was expressly declared that the trustees and assignees should have the same powers, rights, and privileges with respect to the recovery of debts as were exercised by the assignees in bankruptcy. The assignees in bankruptcy could sue in their own name, and, therefore, the clause he had quoted gave power to the trustees appointed by this Bill to sue in their own names. He must, however, decline to assent to the proposal at the latter part of the Amendment with respect to the production of the deed being evidence of the due execution thereof, as it went far beyond the scope of any clause in the Bill.
§ Motion made, and Question, "That the said clause be now read a second time."
§ Put and negatived.
§ SIR HUGH CAIRNSsaid, he rose to move the following additional clause:—
If any debtor shall at the time of adjudication, be liable upon any bill of exchange or promissory note in respect of distinct contracts as member of two or more firms carrying on separate and distinct trades, and having distinct estates to be wound up in Bankruptcy, the circumstance that such firms are in whole or in part composed of the same individuals shall not prevent proof and receipt of dividend in respect of such distinct contracts against the estates respectively liable upon such contracts.The object of the clause was to alter a rule which had been established in bankruptcy by a course of decision, and which had been regretted by almost every Judge, because it placed the bills of exchange of this country in an unfavourable position in the market as compared with those of other countries where no such rule of law prevailed.
§ Clause brought up, and read 1o.
THE ATTORNEY GENERALsaid, that he approved of the clause, and was obliged to his hon. and learned Friend for his suggestion. By the existing practice a man might hold a bill of exchange against traders who were members of two distinct firms, thinking that both firms were liable to him for his debt; bnt if they both happened to become bankrupt the unfortunate creditor could come upon the estate of one only. The English law did not recognize a partnership as a legal person. They could not take out a fiat in bankruptcy against a partner, quâ partner; they must make the person individually liable. Hence arose the difficulty 165 in the matter. He thought that the clause ought to he carried even further than his hon. and learned Friend proposed, in order to meet the case in which a debtor was both a sole trader and a member of a firm. He would, therefore, move the insertion after the words "wound up in bankruptcy," of the words "or as a sole trader and also as member of a firm;" and, likewise, the insertion after "the same individuals" of "or the sole contractor is also one of the joint contractors."
§ Clause read 2o amended, and added.
§ Clause 12 (Appointment of additional Registrars),
§ SIR FITZROY KELLYsaid, he wished in line 7 after the word Bankruptcy to insert the words "or the additional duties imposed upon the Registrars by this Act."
THE ATTORNEY GENERALsaid, he thought it would be sufficient to state "having regard to the state of business."
§ Amendment negatived.
§ Clause 18 (Duties of the Taxing Master),
§ MR. MURRAYsaid, he wished to propose Amendments the effect of which would be that the taxation of solicitors' bills in the district court, instead of being settled by the local registrars, as proposed by the Bill, should be in all cases settled in London. He had before him a report of a case from which it appeared that a local registrar, whose name be would not mention, had improperly allowed himself certain fees, and the bill allowing such charges fell to the registrar's own duty to settle. The Commissioner had acknowledged that the registrar was in fault; but he said that the money having been refunded that was enough, and no more notice need be taken of the matter. Such a state of things ought to be avoided. His object also was to secure uniformity of charge in London and the country.
§ Amendment proposed, in page 5, line 7, after the word "Act," to insert the words "or any other Act in force relating to Bankrupts, and also."
§ Question proposed, "That those words be there inserted."
THE ATTORNEY GENERALsaid, he was not sufficiently experienced in the subject of taxation of costs to pronounce at once a decided opinion. There would be, no doubt, some convenience accruing from the hon. Gentleman's proposition, but it would also involve additional expense. Whether the benefit would outweigh the additional expense was the point to be considered, and he should wish to hear the 166 opinion of other gentlemen connected with the legal profession.
§ MR. LOCKEsaid, he wished to call the attention of the Attorney General to the direction in the 27th Clause, that the taxing master of the Insolvent Debtors' Court should be transferred to the Court of Bankruptcy to be employed in such manner as general orders should direct. He wished to know what duties that gentleman would have to perform.
§ MR. HADFIELDsaid, that with reference to the proposition of the hon. Member for Newcastle-under-Lyme (Mr. Murray) he begged on the part of the profession in the country to say that there were strong objections to it. If all the law charges of the various bankruptcy cases throughout the country were to be referred to the metropolitan office, the consequence would be that in the majority of instances there would be ex parte taxation, as there would be no person opposing the party who sent in the bill, and who would, therefore, have the ear of the master. In every minute case a bill would have to come to London to be taxed, and he was sure the cost thus incurred would be greater than the benefit.
§ MR. MALINSobserved that all common law bills were taxed in London, and there would be some advantage in having an uniform system of taxation.
THE ATTORNEY GENERALsaid, amongst other reasons, as the notice of the Amendment had been given only that morning he could not accede to it.
§ MR. MURRAYsaid, he would withdraw his Amendment.
§ Amendment by leave, withdrawn.
§ Clause 40 (Retiring Pensions to Officers),
§ MR. MALINSsaid, he wished to propose an Amendment with reference to retiring allowances. As the matter now stood, retiring allowances were only to be given to those who had seen twenty years' service and had reached sixty-five years of age. He could instance the case of gentlemen, however, who had served since 1832, and yet, in consequence of not being sixty-five years of age, they would not be entitled to any retiring allowance. He suggested, therefore, that words should be inserted which would make thirty years' service equivalent to being sixty-five years of age. His Amendment was to insert the following words:—"Or shall have been appointed to such office in or previous to the year 1832."
§ MR. MURRAYsaid, he should support the Amendment.
§ MR. CRAWFORDalso expressed his approval of the Amendment.
THE ATTORNEY GENERALsaid, there was some difficulty in regard to laying down a principle of this kind. The House had already laid down the principle that an officer should not be entitled to retire with a retiring allowance unless two conditions were fulfilled; one, that he should have served twenty years, and the other, that he should have attained the age of sixty five. The proposition of his hon. and learned Friend was to introduce into the clause a privilegium in favour of A. B. or C. D. If the House chose to introduce those words for the purpose of meeting particular cases he, individually, would make no further objection. He had discharged his duty to the House in pointing out to it the exceptional character of the Amendment.
MR. HENLEYsaid, the Committee were now suffering from the inconvenience of the Bill not having been reprinted since it had passed through Committee. Such exceptional legislation was very objectionable, and the Government ought to inform the House what officers would be affected by the Amendment.
THE ATTORNEY GENERALsaid, he thought that such explanation should come from the hon. and learned Member who had moved the insertion of the words.
§ MR. MALINSsaid, that the Amendment he had moved referred specifically to Mr. Whitmore, one of the official assignees, who had served the country for twenty-nine years, and was now anxious to retire.
§ Amendment agreed to.
§ Clause 62 (Parties, &c., not attending liable for contempt),
THE ATTORNEY GENERALsaid, he wished to amend the Clause by striking out the words "sitting at chambers," so as to give the registrar authority to take the oath wherever he might be employed at the time.
§ Amendment agreed to.
§ Clause 82 (Act of Bankruptcy by Non-Trader),
§ SIR HUGH CAIRNSsaid, that the clause mentioned certain Acts which in the case of persons not traders might lead for the first time to an adjudication in bankruptcy. The difference between the trader and the non-trader had already been pointed out. It was the duty of a trader to be at his place of business, and in his absence 168 to leave his servant or some other person there to represent him. But a non-trader was under no such obligation, and no suspicion need necessarily arise from his being out of the country. Although, therefore, it might he desirable to introduce non-traders into this Bill, the Committee ought at the same time to proceed with caution, and to take care that sufficient safeguards were provided for their protection. The clause as it stood, however, appeared to him to be deficient in this respect. If a non-trader, who might be a Member of that House, happened to be out of the country, a statement might be made behind his back to the effect that he had gone away with the intention of defrauding his creditors. All the person who made that statement would really have to do would be to say that he did not know in what part of the Continent the non-trader was to be found, and then he would ask the Judge to be allowed to serve the petition at his dwelling house, which might be shut up, or only in charge of a servant. The consequence might be, therefore, that when the gentleman returned from his continental tour the might find that he had in his absence been adjudicated a bankrupt, though he had not left the country with any idea whatever of defrauding his creditors. By the Amendment, which would give an additional safeguard, he simply proposed that in all cases there should be a personal service upon a debtor. The debtor would thus have an opportunity of coming forward and being heard before he was adjudicated a bankrupt. As they were bringing non-traders for the first time under the operation of a law of this description he thought the proposal was a very fair one, and he hoped it would be agreed to by his hon. and learned Friend. He would, therefore, propose after "Provided always" in line thirty-one, to leave out to the end of the clause and insert—
That before any adjudication in bankruptcy shall be made against the debtor under this section the following rules shall be observed:—1. A copy of the petition for adjudication shall be served personally on the debtor, either within the jurisdiction, or in such place or country, or within such limits abroad, as the Court shall, upon application for that purpose, direct. 2. Such copy petition shall have endorsed thereon a memorandum, in a form to be settled by the general order, specifying the time within which the debtor is to appear on such petition; and such time shall, when the service is to be made abroad, be the time which the Court shall think reasonable, having regard to the place or country where the service is to be made. 3. In no case shall the 169 time for appearance be less than thirty days after service. 4. If at the expiration of the time limited for appearance the Court shall, on the hearing of such petition, be satisfied that an act of bankruptcy has been committed within the meaning of this section, it may adjudge such debtor to be a bankrupt.
§ MR. HADFIELDsaid, he hoped the hon. and learned Gentleman would not press the Amendment. He could not understand why non-traders should be allowed to contract debts to any amount, and then have so many privileges thrown around them. The payment of just debts ought to be as strictly enforced against the aristocracy and professional men as against any other class. A trader was presumed by law to be always at his place of business, but a non-trader who was up to his ears in debt might be wandering up and down the country like an Arab, and there would be the greatest difficulty in finding his locus in quo. He held the doctrine that every man who had contracted a debt ought to pay for it, and he had no right to go from home on pleasure until he had done so. They ought to make a non-trader keep books like a trader, and if he could not pay his debts he ought to be brought before the Bankruptcy Court. Sir Samuel Romilly was the first person who had tried to break in upon the existing system, and carry out the principle contained in this Bill. He hoped the hon. and learned Attorney General would not agree to the Amendment.
§ SIR GEORGE BOWYERsaid, he had no doubt that the additional safeguards proposed by the hon. and learned Member for Belfast in the case of non-traders would be useful, and he trusted they would be agreed to. They showed, however, the inexpediency of including non-traders under the bankruptcy law, inasmuch as they could not be dealt with in the same manner as traders. No one denied that the non-trader should pay his debts as well as the trader, hut that was not the question. The question was whether non-traders ought to be brought within an exceptional system of legislation intended for traders? With respect to persons not traders the ordinary law of the land was applicable, which compelled a man to pay his debts, and if it was shown that the law of debtor and creditor was in any way deficient, he was ready to assent to further powers being granted; but it was another thing to apply to a non-trader that peculiar system of bankruptcy, which was founded on the exigencies of trade. It appeared to him that 170 the non-trading clauses ought not to be introduced into the present measure, which was a Bill for the amendment of the law of bankruptcy, but the hon. and learned Attorney General, if he desired to pass those clauses, should embody them in a separate Bill. He trusted that there would be another opportunity for considering this important subject, and that the Bill would be reprinted.
MR. HENLEYsaid, he hoped the hon. and learned Attorney General would agree to the Amendment proposed by Sir Hugh Cairns.
MR. HENLEYsaid, he was very glad to hear that, because no man ought to be condemned as a bankrupt before he had been heard. No doubt all persons ought to pay their debts; but there was this difference between trading and non-trading debts—that time was the essence of a trading debt, it being always contracted to be paid within a certain time; but with a non-trader's debt it was not so, there was no specific contract to pay in any given time.
§ MR. ROEBUCKsaid, he wished to put this case:—Suppose an officer in the army was sent to India for a lengthened period, and suppose some one out of pure malice should say that officer owed him £100, and should serve him with a notice such as that proposed by the Amendment of the hon. and learned Member for Belfast, to return borne and answer the accusation brought against him;—if through being under orders to stay in India he was unable to answer the citation, would he be made a bankrupt?
THE ATTORNEY GENERALsaid, that out of respect to the hon. and learned Member he would answer his question. It would be utterly impossible to declare the officer bankrupt if be were abroad on foreign service, because no man could be declared a bankrupt who was not proved to have gone abroad and to be remaining abroad with intent to delay his creditors. It would be just as preposterous to attempt to make a man who was abroad in the service of the Crown a bankrupt as it would have been to have taken out process against the hon. and learned Member (Mr. Roebuck) when he visited Austria the other day. With respect to the observations of the hon. and learned Member for Dundalk (Sir George Bowyer) if he had read the Bill with attention he would have seen that the trader and the non-trader were placed on entirely the same footing. 171 The only question involved in the present discussion was how to fix the intent of the debtor to defeat or delay his creditor—what evidence should be required. Given the intent, then all sides agreed upon the course to be pursued. But it was contended that the evidence applicable to a trader ought not to be applicable to a non-trader as to the intent. Now, he had admitted the justice of the Amendments proposed by the hon. and learned Member for Belfast (Sir Hugh Cairns) and that personal notice should be given to the debtor of the proceedings against him before adjudication was made, but he did so on one condition—namely, that the hon. and learned Member would agree to an addition which he would propose, and which should form the fourth rule, to the effect that if personal service had not been effected the Court must be satisfied that every reasonable effort had been made to effect the same, and that the attempts to serve such person had come to the knowledge of the debtor and had been defeated by his conduct"
§ SIR HUGH CAIRNSsaid, he was willing to make such addition to the rules. Where a person was endeavouring to avoid a bankruptcy he thought a substituted service might be allowed.
§ MR. WALPOLEremarked that he also concurred in the addition proposed by the hon. and learned Attorney General.
§ SIR FITZROY KELLYsaid, that although he wished to see the Bill passed with all reasonable expedition, still he deemed it desirable that the particular clause under discussion should he carefully considered. It had been assumed by his hon. and learned Friend the Attorney General that no process in bankruptcy could be issued against a naval or military officer on foreign service unless he had either gone abroad or could be proved to be remaining abroad for the purpose of defeating his creditors. But even under the present clause there was another ground upon which all persons, whether traders or non-traders, residing in England or in a foreign country might be made bankrupts, and that was if they should, with the intent of defeating their creditors, make what was termed under the bankruptcy law a fraudulent conveyance or gift of their goods or estates or any portion of them. Thus, if an officer employed in India, being obliged to remain there for a considerable number of years, should convey away any portion of his property, or should make a settlement upon his family which though looked 172 upon as entirely blameless among persons in ordinary life were yet under the operation of the law of bankruptcy deemed fraudulent as against his creditors, he would be liable, under the present clause, to be made a bankrupt. Such a person, moreover, was to be served with a notice, not to show cause by affidavit, but to appear personally in this country, under the penalty of having a judgment obtained against him. He trusted the hon. and learned Attorney General, before the Bill was sent to the other House, would consider the condition in which such an officer would be placed. The hon. and learned Gentleman should remember that the clause before the House applied not only to naval and military officers on foreign service, but to all descriptions of persons employed under the Crown whose duties might oblige them to go abroad and remain abroad for a considerable time, as well as to a number of individuals who, although not in the public service, might have occasion to reside abroad, but without any desire to evade the payment of their just debts. He entirely concurred in the Amendment of his hon. and learned Friend the Member for Belfast. It would do something, but he was afraid too little, because it provided only one among the many safeguards without which an important and excellent Bill would be productive of numerous evils to many classes of persons in this and other countries.
§ MR. MALINSsaid, he wished as a strong supporter of the non-trading clauses to congratulate the Committee and the country upon the fact that they had at last arrived at a general concurrence that sufficient safeguards were thrown around non-traders. No doubt persons who were not in trade were to be treated more leniently than those who were; but, with that exception, the principle was now generally recognized that those who were unable to pay their debts, having had a reasonable opportunity of arranging with their creditors, and having failed to do so, should be compelled by process of law to cede their property for the benefit of their creditors. He thought what had fallen from the hon. and learned Member for East Suffolk proceeded very much on a misapprehension of the language of the Bill. He had proceeded on the assumption that personal appearance was meant. He did not mean anything of the kind. Every bill in chancery, every writ in common law, as served, had an endorsement to the effect that the 173 person who was served must appear within a certain time, or judgment would be given against him; but it did not mean that he must appear in person. The particular clause referred to did not come into operation against a non-trader unless it was proved he had gone abroad to defraud his creditors; and then he had not less than thirty days to enter an appearance by his lawful agent or solicitor.
§ SIR GEORGE BOWYERsaid, he wished to know who would have to pay the expenses of the service abroad of the petition. Those expenses would, doubtless, be considerable. He would not assent to the definition of the word "appear," which had been given by the hon. and learned Member for Wallingford (Mr. Malins), that the appearance might be by attorney or agent. At all events, the doubt which existed on the point ought to be cleared up. He believed that such a power of bringing a debtor from abroad might be improperly made use of for vindictive purposes—in fact, a man might be ruined by being brought back, although he was at the time a solvent man. If the Attorney General wished to bring the non-trader under the operation of the bankrupt law, he should do it in a Bill restricted to that one subject, and not at the fag-end of a Bill to Amend the Laws of Bankruptcy.
§ Clause amended and agreed to.
§ Clause 83 (Lying in Prison and escaping out of Prison),
THE ATTORNEY GENERALsaid, he wished to add at the end of this clause—
No debtor shall be adjudged bankrupt on the ground of having lain in prison as aforesaid during fourteen days, unless after he shall have been summoned he shall not offer such security for the debt or debts in respect of which he is imprisoned or detained, as the Judge, commissioner, or registrar, whose duty it would otherwise be to adjudicate, shall deem reasonably sufficient.
MR. HENLEYsaid, he was much obliged to the hon. and learned Attorney General for the fair spirit in which he had met the objections which had been made to portions of the Bill. He had now made it uniform, and no person was now to be adjudged a bankrupt until he had been heard.
§ SIR GEORGE BOWYERsaid, it was clear from the 94th section that the appearance of the person charged with an act of bankruptcy must be personal; and, therefore, he repeated that if a man went abroad he would always be liable to be brought back by any ill-conditioned person who chose to swear that he had left the 174 country for the purpose of evading the payment of his debts.
§ SIR HUGH CAIRNSsaid, that would be a very serious thing if the fact were so; but Section 95 expressly declared that no person should be obliged to appear personally who could allege a lawful impediment. He would, therefore, only have to send home an affidavit stating the fact.
§ SIR FITZROY KELLYsaid, he was much obliged to the hon. and learned Baronet for calling attention to the point; and he should be glad to know how it was to be made to appear whether an impediment was a lawful one or not. He hoped the question would be clearly settled.
THE ATTORNEY GENERALsaid, the whole case had been fully heard in Committee, and, he submitted, it was not competent to raise another discussion on the question now.
§ MR. ROEBUCKsaid, he thought the hon. and learned Gentleman rather hard and sharp in his practice. He had brought in a very large Bill on a very important subject, and it had been carried through the House at a pace almost unprecedented. ["Oh, oh!"] They might say "Oh, oh!" but he should like to know how many Gentlemen understood the Bill. The Attorney General was going actually in the teeth of justice; but when the Bill went to "another place" it would be treated in a very different manner. It would undergo a great deal of discussion elsewhere, and if it were now passed hastily when the Bill was sent down to them again they would have another opportunity of discussing it.
§ MR. SPEAKERThe hon. and learned Gentleman has had the opportunity of discussing it.
§ Clause agreed to.
§ Clause 101 (Debts contracted before the Act not to support an adjudication in case of Non-trader),
§ MR. MALINSsaid, he rose to move the omission of this clause, which, so far as non-traders who had contracted their debts before the passing of the Act were concerned, rendered the Act a nullity. It was now settled that non-traders were to be subject to the bankrupt laws, and that if a non-trader went abroad for the purpose of defeating or delaying his creditors, that that was to be considered as an act of bankruptcy on his part. Well, it was a fact that there were a great number of persons who, having property and having debts, had already departed the country, keeping their property, but leaving their debts. That 175 was a great evil; and it was with a view of meeting it that he proposed the omission of the clause. It was said, however, that they ought not to make ex post facto laws; but were they not creating ex post facto legislation every day? He had lately brought before the House the case of a gentleman whose salary they had cut down by two-thirds after forty-two years' service, and his right hon. Friend (Mr. Henley) had thereby saved a little money, but at the expense of a great injustice. Or let him take the case of a felony. Suppose that an act was made felony, that a man would never be allowed to escape on the ground that his offence had been declared to be such by an ex post facto law. It was altogether a maudlin sentiment. He did not know how the clause got into the Bill, or how it was supported by his hon. and learned Friend. He was sure it was utterly beneath the breadth of his mind. He was as anxious as any man to maintain vested rights, but when he knew that men were living abroad defying their creditors, and living in the daily practice of fraud and chicanery, then he cared not for the name of an ex post facto law—he would make the law strong enough to reach them.
§ Amendment proposed, to leave out Clause 101.
MR. HENLEYsaid, the hon. and learned Gentleman had chosen to make a personal allusion to him. He talked of a gentleman whom he (Mr. Henley) had helped to deprive of his salary. [Mr. MALINS: Emoluments.] The gentleman to whom allusion had been made had not been in the receipt of a salary but of fees, which from accidental circumstances had grown much more remunerative than when he first took his situation. He could not, therefore, blame the Legislature for restoring matters to a proper footing. But what was the hon. and learned Gentleman's next illustration? He said that if a certain act were created a felony it would have a retrospective effect. Now, he would put it to the hon. and learned Gentleman—he was a lawyer, an hon. and learned, and he ought to know—did he ever know a case that when a new felony was created it was made to apply to persons who had done that act before the passing of the law? He had not intended to take any part in the discussion of the clause, but after the hon. and learned Gentleman had appealed to him, and after the curious illustrations he used in support of his argument, he 176 could not avoid saying a few words. He would only further remind the hon. and learned Attorney General that when he introduced the Bill he said that, with regard to certain matters, and this one now under discussion among them, the Bill would not have a retrospective bearing. That was in the nature of a pledge, in reliance on which the Bill had met with little opposition.
§ MR. VANCEsaid, he should support the omission of the clause, as he did not see that its continuance was in accordance with either justice or equity. He knew that the Chamber of Commerce in the city he represented complained year after year of a law which protected persons holding judicial offices in courts of law from arrest as they were going to or returning from court, which enabled them to evade their creditors, and this applied to several persons about the courts in Dublin that it would not be convenient to name. He could not see any possible hardship in the omission of the clause.
§ SIR MORTON PETOsaid, he hoped the Attorney General would yield to the hon. and learned Member for Wallingford and omit the clause. The real fact was that if it were not for the large class of non-traders who evaded payment of their debts, there would be no necessity for the non-trading clauses at all. Gentlemen resident in the country had nothing whatever to fear from the operation of the clause. Before sitting down he must say a word as to the hon. and learned Member for Sheffield's observations about the sharp practice in passing this Bill. There was no sharp practice at all; and he could only say it would be well if the courtesy and urbanity shown by the hon. and learned Attorney General were imitated by other hon. Members.
§ MR. ROEBUCKsaid, he had made no charge of discourtesy against the hon. and learned Attorney General. He believed there was in the House a pretty strong feeling as to the general demeanour of the hon. and learned Gentleman, and in that feeling he for one concurred. He understood the English language well enough to know that this praise of the Attorney General was a covert attack on him (Mr. Roebuck). He knew very well that when a gentleman had nothing else to do in the House he could always gain a little popularity by abusing the Member for Sheffield.
§ MR. WALPOLEsaid, he thought it would be better to retain the clause. 177 They were now about to make a material alteration in the law, of which he for one had always been a warm supporter, as he had no fear whatever of the consequences of assimilating the law that applied to traders and non-traders. Still, as it was a considerable alteration in the law, he entreated his hon. and learned Friend not to depart from that form of the Bill which had been rightly adopted in the first instance. Much unnecessary indignation had been expressed about the non-trading portion of the community wishing to evade payment of their debts. The clause simply said that no debt incurred anterior to the Bill should be sufficient to support a petition for an adjudication of bankruptcy, and the House should remember that it would not preclude a creditor from bringing an action against a debtor; and if he obtained a judgment, then all the machinery of the Act would apply. All that the retention of the clause would do would be that the creditor could not obtain an adjudication of bankruptcy without bringing an action.
§ MR. CRAWFORDsaid, he thought that if the Bill were made retrospective in one case it ought to be made retrospective in all. He was glad to see that the majority of hon. Members were in favour of expunging the clause.
§ MR. HALIBURTONdenied that a debtor's power of going or remaining abroad to defraud his creditors was a vested right. He called it a vested wrong. He trusted that the clause would be withdrawn. The objection now raised was not admitted when they abolished arrest for debt on mesne process, and yet that was as much an ex post facto law as the one before them. The class of persons to be affected by the clause were people who had contracted debts and left the country for the purpose of evading their debts and drawing their substance in this country. They were a class who were no credit to their country, and were no credit to any nation where they resided. Everybody acquainted with the Continent must be aware that English debtors living there were a disgrace to this country.
THE ATTORNEY GENERALacknowledged that in bringing forward the Bill he had used the expression referred to by the right hon. Member for Oxfordshire. He had then been apprehensive whether they could settle in a satisfactory manner the terms and conditions on which non-traders should be subjected to bankruptcy. Undoubtedly, however, if the clause remained 178 in the Bill, the benefit of the measure might enure to the next generation, but would be comparatively lost to the present. That conviction had been strongly impressed upon him by numerous letters which he had received from tradesmen representing that many persons, some of them of considerable rank, had gone abroad, and from their place of refuge there sent word to their creditors that they meant to stay away until they accepted 5s. or 3s. in the pound. The objection had been taken that the omission of the clause would render the Bill retroactive. It was the first time he had heard the complaint against retrospective legislation urged in regard to mere improvements in procedure. For the last twenty years we had been amending and simplifying the procedure of our courts in relation to the enforcement of contracts. The rules of evidence, too, had been revised, and a man could now be called as a witness in his own case. But nobody had contended that that change should not apply retroactively to existing debts or contracts. There could be no earthly reason why, in simplifying and amending the procedure in bankruptcy a principle should not be applied which had been recognized in every other case. He should therefore submit the question to the unfettered judgment of the House, expressing his individual opinion that the benefit of the Bill should be felt immediately, and not postponed to an indefinite period.
§ Question, "That Clause 101 stand part of the Bill,"
§ Put, and negatived.
§ Clause 116 (Persons imprisoned under County Court Acts not to be released),
§ MR. AYRTONsaid, he should move the omission of the clause as unjust to small debtors. At present the law provided that no non-trader could be discharged from the payment of his debts. He might be protected from imprisonment, but his property for all time to come was liable to make good the claims of his creditors. The change proposed was that no person owing more than £20, who surrendered his property, should be liable for his debts unless he had contracted them by fraud, or had committed some fraud upon his creditors. In those cases the Court might order discharge, on condition that the future property of the bankrupt should be liable. But persons who owed less than £20 who had no property to surrender, and who were subject to the jurisdiction of the county courts, remained liable to be ordered to pay their debts by 179 instalments out of their weekly earnings and to be imprisoned from time to time for periods not exceeding forty days each time, if they were in default, so that two persons might be in prison. He would put a case. Suppose one man who had contracted a debt of £5, and had been committed by a County Court Judge; and another who had contracted two debts of £5 and £20, and had, likewise, been committed. The man who owed £25 upon the two judgments would be visited by the registrar in bankruptcy, and invited to leave the gaol, but the man who owed £5 would not be noticed by the registrar, and would be left in prison. The law would subject the poor debtor to long terms of imprisonment and make all his future property liable for the payment of his debts, while any debtor who had the opportunity to incur debts above £20 would be exempted from future imprisonment and entirely acquitted of his debts, if he surrendered the property of which at the time he happened to be possessed at any moment he choose to elect for making himself bankrupt, or when his creditors chose to do so by demanding payment. It would be deplorable if it went forth that they were going to legislate in that manner. He proposed to place all classes of Her Majesty's subjects upon the same footing. The Attorney General, when making the change with regard to debtors above £20, could not defend upon moral grounds, the proposition to leave the law with regard to small debtors exactly as it was before, and he hoped, therefore, the hon. and learned Gentleman would assent to the omission of the clause.
§ Amendment proposed, to leave out Clause 116,
§ MR. CONINGHAMseconded the Amendment.
THE ATTORNEY GENERALsaid, that the Acts of Parliament which had established county courts had introduced, whether rightly or wrongly, also the principle of penal imprisonment, and he could not, in a Bankruptcy and Insolvency Bill, deal with penal imprisonment as with ordinary imprisonment for a breach of contract. But the Amendment, moreover, was not limited to the removal of the anomaly, if it were possible, between the position of the poor man and the position of the wealthier man, but would place him under the obligation of delivering from prison every person who was committed to prison by a County Court Judge. The County Court Judge, it should be remem- 180 bered, had no power to imprison for debt simply, but only when he found the debtor, in incurring the debt, had obtained credit under false pretences, or by means of fraud or breach of trust, or had wilfully contracted the debt without any reasonable expectations of being able to pay it. Unless the whole county court system was to be pulled up by the root it would be impossible to alter that. A man was committed to prison by the County Court Judge for debt, who founded his order upon some malpractice on the part of the debtor. The hon. and learned Gentleman proposed that such a man should be discharged by the registrar under the Bill then before the House, but the machinery of that Bill was inapplicable, because debtors could only be discharged under it after a declaration of bankruptcy, and where would be the use of declaring a man a bankrupt who probably had not 5s. in the world. It had been deemed right to accompany the county court jurisdiction with peculiar powers, and to adopt the suggestion of the hon. Gentleman would be to destroy that jurisdiction by a sidewind. The question must be brought before Parliament in a different shape. He could not assent to the proposition of the hon. and learned Gentleman, and he hoped the House would agree that this question should not be dealt with in this incidental manner.
§ MR. ROEBUCKsaid, he thought the hon. and learned Attorney General was right in saying that the proposition of the hon. Member for the Tower Hamlets would destroy the county court system; but there was one way in which the object of the hon. Gentleman to place rich and poor debtors—so to speak—upon the same footing could be attained. Under the county court system men were committed to prison not only for fraud, but also for contracting debts without at the time having reasonable expectation of being able to pay them. In the Bill before the House provision was made for fraud, but why should it not be made a penal offence on the part of the bankrupt to have contracted debts without reasonable expectations of payment? A provision of that kind would place both classes upon the same footing.
MR. HENLEYsaid, he thought if the Bill passed in its present shape there would be such an. anomaly between the condition of the poor debtor and the richer debtor that it would soon have to be remedied. The hon. and learned Attorney General had stated that there were two causes for 181 imprisonment by County Court Judges—fraud or contracting debts without reasonable expectation of payment; but unless he (Mr. Henley) was mistaken there was another power of imprisonment exercised by County Court Judges, in cases where they thought the debtor had the power to pay and did not pay. It was a difficult thing for a Judge to know whether a poor man earning weekly wages was in a position to be able to pay. As a visitor of the gaol of the county with which he was connected, he could state that one-half of the persons confined for debt were detained under county court commitments. Now, when they were providing a stringent remedy in respect of property, he thought all imprisonment for debt should be got rid of, except for fraud in its largest sense. A County Court Judge at present made an order upon a man to pay, and if he did not pay he was, by a very summary process, sent to the county goal for a certain number of days, and when they had expired he did not get free, for he might be committed over and over again. He hoped the hon. and learned Attorney General would consider that subject.
THE ATTORNEY GENERALsaid, he wished to inform the right hon. Gentleman that the commitments which he was referring to were made because the County Court Judge found that after the order for payment the debtor had sufficient means of satisfying the debt. In the 117th Clause of the Bill before the House he had introduced a provision for the purpose of mitigating the hardship, by directing the County Court Judge, in inquiring whether the party since the judgment obtained against him had had sufficient means to satisfy that judgment, should take into consideration all other debts and liabilities which were pressing upon him.
MR. HENLEYsaid, he did not think the statement of the Attorney General exactly met the case. To talk of other debts and liabilities on the part of a poor labouring man was out of the question. Often when a poor debtor was brought before the County Court Judge, the Judge, with uncertain knowledge, decreed that the debt should be paid in a certain manner, and if the debtor failed to so discharge it he was imprisoned.
§ MR. CONINGHAMsaid, it was evident that there existed a distinction between two classes of debtors which the Legislature ought not to sanction. The contractor of a large debt was whitewashed by the 182 Bankruptcy Court, but the small county court debtor was liable to be continuously committed to prison at the discretion of the Judge. This was a hard case where there was no fraud, and the anomaly ought to be removed. The object of getting this clause struck out was for the purpose of introducing another that would meet the case.
§ Question put, "That Clause 116 be part of the Bill."
§ The House divided:—Ayes, 84; Noes, 53: Majority, 31.
§ Clause 141 (Pay, Half-pay, and Pensions of Bankrupt to be applicable for Creditors),
§ MR. AYRTONsaid, he wished to amend this and the following clause which had reference to debtors holding positions in Government departments. The Bill provided that all persons holding situations in public companies, or private firms, or any other situation, should obtain the benefit of the present Bill, and should not be liable to pay their debts out of their future earnings. But he could not understand upon what principle one class of the community should be exempted from its operations. Why should a distinction exist between those employed in the public service and those employed in the offices of a bank or railway company? How could they distinguish between a man who earned a salary and a professional man or trader? After a discharge every person ought to be in precisely the same condition. But with regard to persons in the public service conditions were attached, they were to be absolutely on the discretion of the Judge and liable for the payment of their debts out of any future salary they might receive. No other class was placed on that footing, except that if they had contracted a debt fraudulently, their future property was made liable. He proposed to amend these clauses by inserting at the commencement: "When the discharge of a bankrupt shall be conditional, as hereinafter provided," that then the future salary should be made liable for the payment of his debts, but if he obtained an unconditional discharge that then the clause should not apply, thus getting rid of this unjust and anomalous distinction.
§ Amendment proposed, at the beginning of Clause 141, to add the words "When the discharge of a bankrupt shall be conditional, as hereinafter provided."
THE ATTORNEY GENERALsaid, he would ask whether it was right that a 183 public servant with say a salary of £1,500 a year, who had passed through the Bankruptcy Court, should he left in possession of his whole income. The clause provided that in such a case the Judge should be empowered to appropriate a portion of the bankrupt's pay, emolument, or pension for the benefit of his creditors. In the case of an annuity held independently of office it would be sold for the benefit of creditors, and if a man had an annuity subject only to the performance of certain services he ought not to be exempted. The hon. and learned Gentleman proposed to give the Judge power to divest the bankrupt of part of his annual income only in the event of misconduct. To that he could not agree, believing that a man with a settled income who had incurred debts should be forced to reduce his expenses, and to devote a portion of his future salary to the payment of his debts. As to clerks or others in private establishments, they held their offices at the will of their employers, but a public servant continued in his office quamdiu se bene gesserit, that was practically for life.
§ MR. ROEBUCKsaid, that when a poor man, whose wages were 20s. a week, came into the County Court the Judge would, perhaps, order him to pay 10s. a week towards discharging his debts. Why should not the same rule be applied to persons in receipt of salaries? For his part he did not understand the difference between wages and salary. No doubt salary was a finer word, and some people liked to use fine words; but they ought to deal equally between the rich and the poor.
§ Mr. BARROWsaid, he wished the hon. Gentleman would withdraw his Amendment, to show that the House was ready to do justice between the rich and poor. A sinecure was to be created by this very Bill; if the holder of that sinecure should be an extravagant man and be unable to pay his debts, would the hon. Gentleman allow him to enjoy his sinecure without deduction?
§ Question, "That those words be there added," put, and negatived.
§ Clause 159 (Proof in respect of Unliquidated Damages),
§ MR. MURRAYsaid, he would move the insertion in the clause of the words, "Provided that in case all necessary parties agree, the Court shall have power to assess such damages without the intervention of a jury or a reference to a Court of law."
§ Amendment agreed to.
§ Clause 163 (Rules as to granting Orders of Discharge),
§ MR. AYRTONmoved, in lieu of the word "property," to substitute the words "touching any salary, pay, emoluments, profits, wages, or earnings, which may afterwards become due to the bankrupt."
§ Amendment agreed to.
§ Clause 207 (Creditors of deceased Debtors may petition the Court of Bankruptcy for distribution of the Estate of the deceased)
§ SIR HUGH CAIRNSsaid, he was about to propose the omission of the Clause 207, which, together with the next eleven clauses were called the dead men's clauses. The clauses extended to non-traders as well as traders. They provided that in the case of every man who died owing debts there should be the power, within three months after his death, of summoning his executor before a commissioner in bankruptcy, or the county court nearest the place where he had resided. The executor would be obliged to make it clear to the Judge that the property of the dead man was more than sufficient to pay all his debts, otherwise the Court was empowered to order the estate of the dead man to be wound up in bankruptcy—in other words, by an ex post facto operation of the law to throw upon his memory and upon his family the stigma of bankruptcy. There could be no doubt about the extent to which that might be carried. Suppose the case of a merchant at Liverpool who died in large business, and who, perhaps, at the time of his death had outstanding debts in the shape of unpaid bills, &c., to the amount of £300,000 or £400,000; he had a residence in Cumberland or Staffordshire. Three months after his death his executor was summoned before the County Court Judge, and unless the executor could make it clear to the Judge that the property of the merchant, in whatever part of the world it might be, was sufficient to pay his debts, the deceased was liable to be stigmatized as a bankrupt after his death, although during his lifetime he had done nothing whatever upon which you could lay your finger and say that he had made himself liable to the bankrupt law. Such a proceeding was entirely new to our law, and was altogether foreign to the law of bankruptcy, which proceeded distinctly upon the ground that some act of bankruptcy had been committed by a man in his lifetime—that he had done or confessed something in his 185 lifetime which, in the eye of the law, amounted to an act of bankruptcy. What could be a more cruel injury to the family of the man whose case he had supposed than to have it declared after his death that he had been a bankrupt, and that his property was to be wound up in bankruptcy? Again, the clause was unnecessary. In the case of a living man, who was squandering his property, it might be necessary for the sake of his creditors that his property should be placed under the jurisdiction of the Bankruptcy Court. But when a man died there was an end of that necessity. The man being dead, he could no longer spend any portion of his property, and his executor would be answerable to his creditors for the distribution of his property amongst them. While the clauses were undergoing discussion in Committee, some hon. Members were deluded with the idea that it would be an advantage to have a deceased debtor's property who bad resided in a country district distributed amongst his creditors by a local court, instead of incurring the expense of coming up to London for that purpose. But the truth was that nothing could be more inconvenient than the state of things which these clauses would produce; for, in the case of a merchant, who had had dealings to the extent of millions with creditors in various parts of the country, or, perhaps, in America, the application might be made to the county court nearest to his country residence; and the consequence would be that all his creditors would be put to the trouble of going to that local court to prove their debts. It might be desirable to give County Court Judges a jurisdiction in the cases of small estates, but it would never do for large ones, and even in the former case the law ought to be amended by a separate enactment. The only result would be that, in order to escape the annoyance executors would resort to the Court of Chancery to administer an estate, and, instead of securing anything like a local administration, most of the large estates would be administered in the Metropolis. For these reasons he hoped the House would reject the clauses.
§ Amendment proposed to leave out Clause 207.
§ MR. CRAUFURDsaid, the clauses had been introduced into the Bill expressly at the wish of the mercantile community, and in fulfilment of a pledge given to a mercantile deputation, and he trusted that pledge would not be departed from, because objec- 186 tions were taken to them. That being so, he thought the country ought to have the opportunity of judging whether the objections were as true in practice as they appeared plausible in theory. It was urged in objection to the clauses that there was a mode of administering the estates of deceased persons, whose property was not sufficient to pay all their debts, in an exceedingly economical and satisfactory way in the Court of Chancery. He was willing to admit that; but why should there not be a means of administering those estates in local courts? Why were people to be dragged into the Court of Chancery, and not to have the opportunity of deciding whether the Court of Chancery was really and truly so beneficial and economical as was contended? There was a strong feeling against that court, founded on the past no doubt. However far recent performance may have gone to remove the opprobrium which had attached to that court, there were still many who would rather lose all their property than go into that court. The only objection which he saw to the clauses under discussion was the introduction of the principle of marshalling debts which held good in the Court of Chancery. That doctrine had no place in the present Courts of Bankruptcy, where the object was to make a fair and equal distribution of the debtor's assets among his creditors. No alteration of that principle was proposed by the Bill in the case of living debtors, and he could see no reason why the assets of a deceased debtor should be subjected to a different rule. With regard to the stigma which it was said would attach to the deceased debtor under these clauses, what was the case in the administration of estates in the Court of Chancery? In that court the names of deceased persons were just as much subject to the stigma of insolvency: for advertisements continually appeared calling upon people to come and prove their debts in the Court of Chancery. The stigma, if stigma there were, could in no case be imposed on any person by the mere operation of the Bill; it could only be the result of his own acts during his lifetime. In the opinion of the mercantile community the clauses would be a most decided boon to the country. The system had been applied in Scotland for many years and had worked well, and he did not see why the experiment should not be tried on this side of the Tweed.
§ MR. WALPOLEsaid, he believed that if the mercantile community to whom the 187 hon. and learned Gentleman referred were aware of the full effect of these clauses they would be the first to object to them. The object of his hon. and learned Friend the Attorney General was to provide a remedy for a grievance of a small kind that no doubt existed, but in applying that remedy the clauses were made to embrace cases and would lead to inconveniences that his hon. and learned Friend never contemplated. There were certain small estates in the country that might, on the death of a person, be administered in a local court instead of being taken into the Court of Chancery. To enable that to be done was the real object of the clause now before them, and it was a good object, but it was one which should be carried out by a separate Bill, and in a manner that would not be anomalous to the law of bankruptcy and inconsistent with one of the main objects of the present Bill, which was to give to debtors and creditors the power of adjusting their affairs out of court. Under the clauses executors would be compelled within three months to go into the Court of Bankruptcy, or, if they did not choose to do that, they must go into the Court of Chancery, in order that the stigma of bankruptcy might not be affixed to their deceased relatives. Heretofore, when a person died the law had given his relatives a proper time to look about them, and see how his debts might be paid, and the residue preserved for the benefit of his family. They were now about to say that, instead of allowing a reasonable period, they would only give three months for the purpose. What would be the effect among the mercantile community? A person might have left plenty of assets, but his executors would be compelled to realise. They must accordingly force sales and inflict an injury on the estate, and, moreover, deprive the surviving relatives of that surplus which they ought to enjoy. To avoid that early process against the estate in three months, parties would be driven into the Court of Chancery for self protection; and thus the very thing which it was desired to avoid would be promoted by these clauses. As the administration of deceased debtors' assets were to be administered according to the equitable principles of the Court of Chancery, which required some of the nicest decisions of a court of equity, they would overload the County Court Judges with an equitable jurisdiction of the most difficult kind. Those Judges were not trained up to this administration, and, as 188 a consequence, their decisions would not give satisfaction to the people of the country. If he had continued to practice in that Court, and had wished to see the business of the Court increase, without reference to the public advantage, there was nothing he should have more desired to see than clauses like the present, which would force many of the estates of the kingdom into the Court of Chancery. No one had been more anxious than himself to support the Attorney General in the main objects of his Bill, and if he might make an appeal to the hon. and learned Gentleman, it would be to withdraw these clauses from the present measure, since they had nothing to do with the Bankruptcy law. Let his hon. and learned Friend the Attorney General thereafter bring in a measure dealing with this particular subject, and there could be no doubt he would be supported by the House in carrying it.
§ MR. CRAWFORDsaid, he hoped the hon. and learned Attorney General would not consent to withdraw the clauses. Their effect had been well considered by the mercantile classes, who knew what they were asking for. In proof he might state that he held in his hand a circular with respect to retaining the clauses in the Bill which bore the signatures of upwards of thirty of the principal banking houses in the City of London, in addition to those of bankers and others all over the country. In fact, there was hardly a monied establishment of any position or character throughout the country whose name did not appear on the paper as having given expression to their desire to see the clauses retained, knowing that an attempt would probably be made that night to exclude them.
§ MR. HADFIELDsupported the clauses, and said that no less than 10,000 mercantile firms in the country were in favour of them. The mercantile community had pressed the hon. and learned Attorney General very much upon those clauses, and no less an authority than Lord St. Leonards was in favour of them.
THE ATTORNEY GENERALsaid, that undoubtedly the clauses could boast an illustrious parentage. They had been recommended by one of the most illustrious lawyers in the kingdom, now a member of the Upper House. They were introduced with the almost unanimous consent of the great body of mercantile men. He had given a promise, in deference to their representations, to introduce the clauses into 189 the Bill, and that promise he had fulfilled. But if his advice were taken his hon. Friends who approved the clauses would do well to agree that a limitation in point of amount should be set upon the operation of the clauses, which would then work very usefully and economically. Hon. Members would do well to remember how limited would he the utility of the clauses if they were left in unchecked operation. One of the great advantages of the Court of Chancery was that after the decease of a debtor, if the executors had reason to believe that the estate was about to be torn to pieces by actions for debt, they could come into court to save expense, and get an order for the equal administration of the estate. Accordingly the Court of Chancery restrained the creditors from bringing these actions, but the County Court had not that power. At the same time he could not agree that clauses of this kind had no place properly in the Bill, because the clauses were distinctly limited to cases where the estates were shown to be insolvent. It would be seen that by the 211th Clause any attempt to carry an estate into a local court would prove abortive if the executors came forward and showed good reason for believing the estate of the debtor would be of sufficient value to pay the debts in full. Consequently the clause would only apply to insolvent estates. Nevertheless he would earnestly request his hon. Friends around him to accede to the proposition which he was now about to make—namely, that the operation of the clause should be limited to cases where the assets of the deceased debtor did not exceed £500, and were insufficient for the payment of his debts. At the same time, if his suggestion should not be assented to, he would abide by the pledge he had given to introduce these clauses.
§ MR. MALINSsaid, that no doubt what his hon. and learned Friend had proposed would be a modification of and greatly improve the clause. He thought it, however, so essentially vicious in principle that nothing would satisfy him but its being expunged altogether.
§ MR. JACKSONsaid, he hoped the House would agree to the suggestion of the hon. and learned Attorney General, and he, therefore, would move formally a clause carrying out the suggestion that hon. and learned Gentleman had made.
§ SIR HUGH CAIRNSsaid, he should like to ask Mr. Speaker, whether it was competent, upon a Motion being put that 190 a clause should stand part of a Bill, to move an Amendment upon that clause? He apprehended that the only Motion which at present could be decided by the House was, whether or not that clause stand part of the Bill.
§ MR. SPEAKERsaid, the question then before the House was whether the clause should stand part of the Bill, and unless the hon. Member who had proposed that the whole clause should be rejected, should consent to withdraw that Amendment, no other amendment or the clause could be proposed.
§ Question put, "That Clause 207 stand part of the Bill: "
§ The House divided:—Ayes 119; Noes 135: Majority 16.
§ On the Motion of Sir HUGH CAIRNS, the Clauses from 207 to 218, being the whole of what were known as "the dead men's clauses," were then struck out.
§ Clause 246 (Misdemeanours),
§ MR. VANCEsaid, he proposed to add, at the end of the clause, the words—"If, being a trader, he shall, within three months next before the filing of the petition for adjudication, pledge, or dispose of, otherwise than by bonâ fide sales, in the ordinary way of his trade, any of his goods or chattels which have been obtained on credit, and remained unpaid for."
THE ATTORNEY GENERALsaid, he thought the Amendment unnecessary, but would not object to it, as it would do no harm.
§ MR. CRAWFORDsaid, he thought it should extend to non-traders.
§ MR. MURRAYsuggested a verbal Amendment in the clause by inserting the word "transactions."
§ Clause amended and agreed to.
§ Clause 253 (Definition of Terms, &c.),
§ SIR HUGH CAIRNSsaid, that he had an Amendment of considerable importance to propose to the Interpretation Clause. As the Bill stood before the 101st Clause was struck out, no debt contracted by a non-trader before the passing of the Act afforded ground of adjudication under it. It would be unjust to non-traders who had contracted their debts before the passing of this Bill, to tell them that they should be punished by a law which they had not known of or contemplated when they were contracting those debts. It had not been the original intention of his hon. and learned Friend, the Attorney General, to make the Bill retrospective against non-traders, for Clause 101 provided that a debt contracted 191 before the passing of this Act should not support a petition for an adjudication of bankruptcy against any one who was not a trader at the time when such debt was contracted. He was, however, greatly surprised to find that the Attorney General had assented to the proposition of his hon. and learned Friend, the Member for Wallingford, who Was somewhat of ah enthusiast against non traders, for the omission of that clause. That omission gave the Bill a retrospective operation against non-traders, which he now proposed to remedy in a simple way, by an addition to the Interpretation Clause. He proposed, in page 68, line 12, after the definition of the word "creditor," to insert these words—"'Debtor' shall, when applied to a person who is not a trader, mean a debtor in respect to a debt contracted after the passing of this Act; and 'Judgment Debtor Summons' shall, as respects such person, mean a summons founded on a judgment, decree, or order, in respect of a debt or liability contracted after the passing of this Act."
§ MR. CRAUFURDsaid, he wished to appeal to Mr. Speaker, whether it was competent for the hon. and learned Member to move this Amendment without giving notice of his intention
§ MR. SPEAKERruled that the hon. and learned Member was in order, as it was an Amendment and not a new clause.
§ MR. MALINSsaid, he was by no means an enthusiast, as his hon. and learned Friend had asserted; but he thought it was unreasonable to keep up the distinction between trader and non-trader. Indeed, he was somewhat surprised at the course taken by his hon. and learned Friend. The House was not taken by surprise with respect to the omission of the 101st Clause, for notice to that effect had stood in his name for some time past. His hon. and learned Friend was undoubtedly not taken by surprise to-night; for before he left the House, when he said he was going to dinner, he (Mr. Malins) said, "By all means go to dinner, and we will send for you when we want you." His hon. and learned Friend, therefore, with a full knowledge of what was going to take place, elected to go to dinner. But if his hon. and learned Friend had been more prudent and had armed himself with his dinner before coming down to the House, then he would have found that there was but one feeling in the House with regard to the matter, so that when the question was put "that Clause 101 stand part of the Bill," 192 there was not found a single voice to say "Aye." The hon. Gentleman opposite had put the question whether it was regular to introduce an Amendment without notice, and it was decided in the affirmative; but then, was it becoming? It was not becoming, and it was the first instance he had ever seen of the kind. He maintained that it was unreasonable, dishonest, and unjust that a man who had incurred debt and had property to pay it should keep that property, and be allowed to leave his debts unpaid, merely because the debt was incurred before the passing of the Act. He, therefore, hoped most earnestly that the House would adhere to the determination to which it had already come.
§ Question put, "That those words he there inserted."
§ The House divided:—Ayes 125; Noes 150: Majority 25.
§ Schedule G (Acts and parts of Acts repealed),
§ SIR FITZROY KELLYsaid, he proposed to strike out the words "twenty-five" from Schedule G, the object being to allow bankrupts to retain certain articles of property worth £20, as they had heretofore been allowed to do.
THE ATTORNEY GENERALsaid, without entering into details, he might inform the House that the right now possessed by bankrupts to appropriate these excepted articles of furniture was a fruitful source of expense. He, therefore, thought it better that the bankrupt should be entitled to such allowance and such articles as the creditors might think proper to award.
§ Question, "That the words 'twenty-five' stand part of the schedule," put, and agreed to.
THE ATTORNEY GENERALsaid, he then had to move that the Bill be recommitted in respect of Clauses 38 and 201, Schedule A, and any new clauses.
§ MR. AUGUSTUS SMITHsaid, he would move that Clause 8 be also recommitted. There had been an engagement to introduce certain words into that clause, with a view to restrict the power on the part of the Crown to appoint County Court Judges.
§ MR. SOTHERON ESTCOURTsaid, he also had to ask that Clause 40 should be recommitted, with a view of allowing the retiring Commissioners their full salaries.
§ SIR FITZROY KELLYsaid, that some of these Commissioners were over seventy years of age, and it was a hard ease not to allow them their full salaries.
THE ATTORNEY GENERALthen moved that the Bill be recommitted in respect of Clauses 8, 38, 42, 201, Schedule A, and other clauses.
§ MR. WALPOLEobserved that no one could have displayed greater ability than the hon. and learned Gentleman in conducting the Bill through all its stages, his conciliatory tone and admirable explanations had done much to recommend the measure to the House; but he must say that the course which the House was asked to pursue was most inconvenient. First of all, by the Orders of the Day they were to go into Committee for the purpose of setting up clauses in the Bill which must be taken on a subsequent evening; according to the same Orders they were to consider the Bill as amended on Report; and finally it appeared in the Notices, but not in the Orders of the Day, that after consideration of the Report they were to recommit the Bill. In the clauses they had spent six hours considering that night they had gained nothing, but had lost a great deal of time, because every one of the Amendments which the hon. and learned Attorney General was going to introduce would have to be reported to the Speaker and considered on a future day. It was not his intention to offer any opposition, but merely to suggest that in future it would be more convenient that all Amendments should be dealt with in Committee before the Bill as amended was considered on Report.
THE ATTORNEY GENERALsaid, he would remind the House that his object in asking for the recommittal of the Bill had been simply to introduce clauses which were discussed and agreed to on a former occasion—in fact, to affirm a foregone conclusion.
MR. HENLEYsaid, the hon. and learned Gentleman was right in stating that the clauses were agreed to be taken almost pro formâ. But the Attorney General had introduced a strange drag-net at the end of his notice, which specified certain clauses, and went on to say, "Schedule A and any new clauses." That certainly was opening up the question with a vengeance. An intimation had been given the 194 other night that the case of the County Court Judges was to be considered, and he must say that the mode of bringing on a question of such importance, if regular, was certainly unusual. His hon. and learned Friend the Member for Suffolk (Sir FitzRoy Kelly) availed himself of the same opportunity to bring on the case of an individual. All this was new matter, and if the hon. and learned Gentleman found it necessary to extend his notice, so as to let in everybody, it would have been better had the Bill been recommitted altogether. The inconvenience of such practices was that they were drawn into precedents.
§ VISCOUNT PALMERSTONsaid, that the object of the hon. and learned Gentleman (the Attorney General) in introducing the words alluded to had been merely to enable the noble Lord opposite (Lord Stanley) to raise a discussion on the question he brought forward the other night with regard to the County Court Judges, whose remuneration he was anxious should be increased. By so doing, however, the Government were not to be understood as agreeing to the necessity for that increase. It was a mere act of courtesy to the noble Lord. But there was much force in the observations which had fallen from the right, hon. Gentleman opposite (Mr. Walpole), and he, therefore, suggested that the hon. and learned Gentleman (the Attorney General) might properly omit the words in question.
§ Motion by leave withdrawn.
THE ATTORNEY GENERALhaving altered his Motion, so that it stood "That the Bill be recommitted in respect of Clauses 8, 38, 42, 201, and Schedule A."
§ Bill re-committed in respect of Clauses 8, 38, 42, 201, and Schedule A.
§ Bill considered in Committee.
§ House resumed.
LORD STANLEYsaid, he felt the difficulty in which the House would be placed by continuing the discussion in its present form, and would, therefore, refrain from pressing the claims of the County Court Judges; but he did not admit those claims were at all done away with by the course pursued in reference to the dead men's clauses, although that would lessen the amount of increased duties thrown upon them. He would, if possible, take another opportunity of bringing them under the attention of the House.
§ SIR FITZROY KELLYsaid, after the course taken by the noble Lord the Mem- 195 ber for King's Lynn, he should also refrain from bringing forward the Motion of which he had given notice; but he trusted that, in some form or other, his hon. and learned Friend the Attorney General would give him the opportunity of calling the attention of the House to the case of the old gentleman to whom the Motion related.
§ MR. NEWDEGATEremarked, that while the salaries of the officers of the Bankruptcy and County Courts had been increased, those of the County Court Judges had not been augmented.
§ MR. NEWDEGATEsaid, he was not aware of that fact, and expressed himself satisfied.
§ Amendment made.
§ House resumed.
THE ATTORNEY GENERALsaid, that in consequence of the Report of the Committee on Stamp Duties not having been brought up there still remained one clause of the Bill which he was unable to move that night. He meant that respecting ad valorem stamp duties. If it would meet the general convenience, he proposed to bring up the Report and move that clause tomorrow at half-past four o'clock. The Bill would then be reprinted, and read a third time immediately after Easter.
§ Committee report Progress; to sit again To-morrow at half-past Four of the clock.