COMMITTEE. (Hansard, 1 May 1861)

§ MR. M'MAHON
said, he rose to move that the Bill be committed on that day three months. The hon. Gentlemen who bad put their names on the back of the Bill had alleged that debtors were put to unnecessary expense in recovering their debts, and that that was the only ground upon which the Bill was based. But was it the fact that creditors were damaged in the manner stated? Traders knew at the time they gave credit the exact state of the law, and, therefore, they ought not to feel disappointed if events happened, the nature of which they must have foreseen. There was no pretence for saying that they were subjected to delay, because they bad the county courts to which to resort in order to recover debts to a considerable amount, and they could also resort in certain circumstances to the Courts held in London and Middlesex. The present Bill contained propositions which were for the first time attempted to he introduced into law. One of those propositions was 1335 that a plaintiff should be empowered at once to recover a debt, unless the defendant should make an affidavit that he had a bonâ fide defence against the claim. Now that would be a very novel principle to adopt in our legislation, and it would naturally promote perjury among defendants in cases of that description. It might be said that there was something of a precedent for that mode of proceeding in the case of the Bills of Exchange Act, but he believed it would be very difficult to get any of the Judges to speak in favour of that measure. There was no instance of such legislation in a civilized country except in the United States; but there there was a restriction, requiring that there should be a written instrument. In New York, however, the only thing to which the system led was a multiplication of affidavits. The spirit of modern legislation was against the practice of affidavits. It might be proper that in the case of a bill of exchange the name of the party to it furnished a primâ facie against him, but it was very different in the case of ordinary debts. Again, if the Bill were based on sound principles, the law officers of the Grown would support it; but, instead of that, not a single authority connected with Government, or with the leaders on either side, were in favour of it. If a defendant was taken suddenly ill, or met with an accident, or forgot the subject, he would be unable to redress himself, even although he should have a receipt for the payment of the debt in his pocket. If the system was considered good in the Courts of Law, it ought to be extended to the County Courts, and more particularly to the Court of Chancery. In fact, it should be made general, and, if it applied to England, it should be also extended to Ireland. As, therefore, the Bill had no real ground work, and was a most unwarrantable departure from existing law, it ought not to be permitted to go into Committee.

§ MR. HODGKINSON
stated that at the time he had moved for leave to bring in this Bill, he had stated the nature of its provisions, and entered very fully into a description of the evils it proposed to remedy. The hon. and learned Solicitor 1336 General had then approved of its principle, and he was now authorized by that hon. and learned Gentleman to state that he had seen no reason whatever to alter the opinion he had then expressed. The argument of the hon. Member who had moved the Amendment was somewhat peculiar. He had argued on the assumption that debtors were a very injured class of persons, very subject to oppression by those with whom they had to trade. That might be the popular side to take, though it was not very agreeable to the feelings of those who were seeking for justice and a redress of grievances. The question, however, was one which ought only to be decided by principles of right and reason. What were the relative rights and duties of debtor and creditor? A debtor was a person who retained in his possession, for his own convenience, something which belonged to another, and, when the time for payment or restitution arrived, the justice of the case required, and every good system of legislation provided, that the rights of the creditor should be capable of enforcement with as little delay and expense as possible. When he brought in the Bill he had shown that it was now in the power of debtors, without any defence whatever, to delay payment to their creditors from one month to another, and very often for a period of six months together. One of the principal objections to the Bill was, that it would lead to perjury, and that it was very undesirable to multiply the number of affidavits. But that was an objection which had been made on former occasions, and proved to have little weight. What measure of modern times had tended more to promote the economical administration of justice than that which enabled parties to be witnesses in their own suits? If the Bill were intended to apply only to rogues who had no regard for an oath, there might be some force in the reasoning. But was there no punishment in the laws of the land for perjury? Would not a conviction for perjury be as easily obtained in the future as in the past, and would not that be sufficient to deter many a man from a commission of the crime? He would take the case of a farmer going to market to sell his corn. Of necessity that man must give credit. The custom in some market towns was to pay in a week, and in others in a fortnight. When, at the end of the fortnight, the man went for his money, was it likely the buyer in order to post- 1337 pone payment for a month, or two would make an oath that he did not owe the money at all? If he were to do the latter, his credit would be at an end, and an indictment for perjury would be laid against him. And supposing there were men wicked enough to retain money by means of perjury, was that any reason why the House should be of opinion that the honest merchant and trader should be thereby debarred from the speedy attainment of his just rights? It was a great fallacy to suppose that the hardships in these cases lay on the side of the debtor. The Bill would prevent as much injustice as the Bills of Exchange Bill did; and where, then, could be its hardship? The hon. Member for Wexford objected to the Bill on the ground that the plaintiff might obtain judgment without showing a primâ facie case, but that was not the fact. The creditor must make an affidavit to establish a primâ facie case; and he could not see what hardship it would be to require the defendant also to make an affidavit that he had a good defence before he was allowed to put in an appearance. He had received letters since he first introduced the Bill, which disclosed a state of things, the existence of which the House would hardly credit. One person had written to say, that he had furnished a house for a gentleman, who had failed to pay him; that his own goods, owing to this failure, had been seized in execution because he was unable to meet his own engagements, and the law afforded him no power to recover his claim without great delay owing to the fictitious defence put in by his debtor—that seizure had cast a stain upon his character. Another had written of the serious inconveniences he suffered by reason of a tenant postponing the payments of his rents from July to November, because the present state of the law did not enable him sooner to recover from a factor the price of some corn which he sold for the purpose of [laying the rent. Was that a state of things which ought to be allowed to continue? With all the respect he entertained for the gentlemen of the bar, he did not consider them the best judges of a question of this nature. Still he believed that if they knew of half as much of the injustice which was being done to creditors by the present state of legislation as he was acquainted with, they would support a Bill which had been laid before all the law societies of England, every one of which had approved of its provisions.

§ MR. MELLOR
said, that despite the argument of the hon. Member (Mr. Hodgkinson), he remained unconvinced as to the prudence or wisdom of the legislation proposed to the House. He admitted that the Bills of Exchange Bill was based on wise legislation, but in the case of such Bills there was no dispute as to the amount. They professed to have been given for value received; they passed from hand to hand by endorsement or assignment, and the burden of proof was always thrown on the defendant. In the case of the Bill before them a very different principle was sought to be established. It proposed a most dangerous innovation on a well-established principle of evidence, that a man who made a claim was bound to support it by proofs adduced by himself. All the Members of the legal profession with whom he had spoken were of opinion that it would operate injuriously, and that it would increase the amount of false-swearing. He should, therefore, support the Amendment, although he did not concur in all the reasons which had been advanced in its support.

MR. MONTAGUE SMITH
said, he thought the House would do well not to proceed further with the Bill, which applied to cases having no analogy to those dealt with under the Bills of Exchange Act. The Bill required debtors to swear that they believed that they had a good defence before they were allowed to plead. That was most objectionable, because a reckless man would hardly hesitate to swear that he believed anything; while a scrupulous man, on the other hand, who had a case that was perfectly good in substance, but which might appear technically doubtful, would shrink from making such a declaration.

§ MR. HADFIELD
said, that it was rather hard that the principle of the Bill, which had been approved of by the second reading, should be contested on the Motion for going into Committee. The same objections that were made to it were made to the Bills of Exchange Bill, but he thought no greater advantage could be conferred on the public than by affording to them every facility in recovering just debts.

§ MR. ROEBUCK
said, he objected to the Bill, upon the ground that it might have a very injurious effect upon the law of England, and the House ought not to proceed to make any alterations in that respect without the sanction of the law advisers of the Crown. Another objection he enter- 1339 tained to the measure was, that the House were asked to go upon the assumption that every debtor was a rogue, and every creditor was an injured man. That was not true. He thought an alteration of so important a nature should be a solemn proceeding introduced on the responsibility of persons in authority, and ought not to be made the subject of a dilettante proceeding on the part of a private Member.

§ MR. COLLIER
said, he also thought such a Bill, if introduced at all, should come before them upon the authority of the Government. The Bills of Exchange Act was an exception to the rest of our legislation, justified by the peculiar nature of the class of instruments to which it referred; but there was no ground for extending the principle of that Act to all debts whatever. Whether a man had a good defence or not depended upon matters of law as well as of fact, and a man ought not to be called upon to swear as to his belief on such a point. He also thought the objections which had been urged by hon. Members against the multiplication of oaths were in themselves insuperable against the Bill.

MR. HENLEY
said, that in the case of a bill of exchange the debtor's signature which appeared on the face of the instrument was an acknowledgment that he owed the money, and it was only under exceptional circumstances that he could have a defence. It might, therefore, be requisite that the defendant should have to show that his defence was not a fictitious one. But that rule could not safely be applied to other cases of disputed debt. He had a weakness for trial by jury, and did not wish to see a system of trying cases by affidavit introduced into our courts of law. It would only tend to encourage hard swearing.