HC Deb 16 March 1882 vol 267 cc1113-25

Bill considered in Committee.

(In the Committee.)

CAPTAIN AYLMER

said, he hoped the hon. Member for Gloucester (Mr. Monk) would not go on with the Bill in Committee that night, as there were a great many Amendments on the Paper which would take a long time to discuss. It was now very late, and he was sure the questions which would have to be considered could not be disposed of in less than two hours. He would move to report Progress.

Motion made, and Question proposed, "That the Chairman do report Progress, and ask leave to sit again."—(Captain Aylmer.)

MR. MONK

said, that, with the exception of one, or at the most two, Amendments, there were no questions of disagreement to be considered in Committee. For his own part, he did not think it would take half an hour to go through the Bill. He was afraid they would never be able to discuss it at an earlier hour, therefore he could not agree to the proposal to report Progress. He hoped hon. Members would allow the Bill to pass through Committee, or, at any rate, to be discussed that night, inasmuch as there was no other Business coming on.

MR. WARTON

said, it was very early in the Session, and the hon. Member had not given them sufficient time to consider the matter. The Bill was not so simple an affair as the hon. Member seemed to think; and people, although they had not had the measure very long before them, were beginning to understand what its effect would be. The people of the country were making complaint of the rapid manner in which Bills were being introduced. Hon. Gentlemen opposite seemed anxious to bring forward Bills and get them disposed of with great rapidity against the wishes of the people; and he would do his utmost to support hon. Members in their demands for reasonable delay. The hon. Member (Mr. Monk) was not correct in saying that there were only two Amend- ments on which the Committee were not agreed. He (Mr. Warton) did not suppose the hon. Member could be aware that there was an Amendment to the 6th section, which affected agricultural communities very considerably.

THE ATTORNEY GENERAL (Sir HENRY JAMES)

said, the measure had been discussed by a Select Committee, and was printed in its present form last year. It had, therefore, been before the country six or eight months. Seeing what few opportunities private Members had of making substantial progress with their measures, he trusted the Committee would endeavour to make what progress they could with the present one.

Question put.

The Committee divided:—Ayes 19; Noes 94: Majority 75.—(Div. List, No. 50.)

Clauses 1 to 5, inclusive, agreed to.

Clause 6 (Exception as to certain things).

MR. WARTON

said, he had an Amendment to propose at the end of sub-section 2. At the end of Clause 6 he wished to add these words— Or any hay, straw, corn produce, live or dead stock, in or upon, or brought in or upon any land or farm in substitution for any hay, straw, corn produce, live or dead stock enumerated in the schedule to such bill of sale. The reason he wished to move this Amendment was this—that in many parts of the country those engaged in agricultural pursuits might be desirous of raising money, and would find it impossible to do so unless there were a provision in the Bill which would enable him to substitute cattle or produce for other cattle or produce he was anxious to dispose of. It was necessary, in order to enable him to carry on the business of his farm, that the farmer should have power to take away certain things from time to time, and substitute others; and the only object of this Amendment was to make the list of exceptions more full. The word "plant," in the 12th line of the section, would hardly include everything upon a farm; and when the Employers' Liability Bill was before the House the Government made a concession upon that point. He did not think the word "plant," in connection with the word "land," in the 14th line, would be sufficient to cover everything, and he therefore proposed to move this addition. The farmer had a perfect right to raise money on mortgage by a bill of sale; but unless some provision of this nature were made he would find himself unable to enter into the arrangements which at present he had full liberty to do. This was a new-fangled Bill to upset all the existing relations between a borrower and lender, and in order that it might pass rapidly through the House it was being pressed forward at an unusual hour of the morning, without sufficient consideration being devoted to its details.

Amendment proposed, In page 2, line 17, to add "or any hay, straw, corn produce, live or dead stock in or upon, or brought in or upon any land or farm in substitution of any hay, straw, corn produce, live or dead stock, enumerated in the schedule to such till of sale."—(Mr. Warton.)

Question proposed, "That those words be there added."

MR. MONK

said, that, as far as he gathered the intentions of the hon. and learned Member for Bridport (Mr. Warton), and as far as he had heard the words of the Amendment, he was disposed, on the whole, to accept them; because there was, no doubt, a great deal of force in the argument used by the hon. and learned Gentleman in regard to the substitution of certain stock and produce for others of a like nature; therefore, subject to further consideration on the Report, in the event of finding anything objectionable in the Amendment, he was not unwilling to accept the proposal.

SIR WALTER B. BARTTELOT

said, he thought that his hon. Friend opposite (Mr. Monk) must be very careful how he accepted the wording of the Amendment. He did not think the words proposed by his hon. and learned Friend (Mr. Warton) would quite carry out what his hon. Friend desired. He (Sir Walter B. Barttelot) thought the words ought to come in in another place. It was, however, quite necessary that the stock of a farmer should be exempted in the way mentioned by his hon. and learned Friend; but, instead of adopting the Amendment now, he hoped his hon. Friend the Member for Gloucester (Mr. Monk) would consider the matter, and bring up additional words on the Report.

THE ATTORNEY GENERAL (Sir HENRY JAMES)

would suggest to his hon. and learned Friend the Member for Bridport (Mr. Warton) that he should not press the Amendment now. The terms of the Amendment were not upon the Paper, and it was advisable that the matter should receive fuller consideration than it could possibly receive now. It would therefore be advisable to bring up the Amendment on the Report, when no one would oppose it unless it was found in reality to be objectionable. He certainly thought that would be the best course to take, and, in the meantime, the matter might be fully considered.

MR. MONK

asked if the hon. and learned Member for Bridport (Mr. Warton) would withdraw the Amendment?

MR. WARTON

declined to withdraw the Amendment at present, and reminded the Committee that if the words were objectionable they could be altered upon the Report.

MR. BARRAN

said, he hoped that his hon. Friend the Member for Gloucester (Mr. Monk) would not accept the vague Amendment which had been moved by the hon. and learned Member for Bridport (Mr. Warton). If it was accepted, he was satisfied that it would nullify the real benefit of the clause.

MR. WHITLEY

supported the Amendment, which he thought dealt with a substantial grievance. There were cases in which considerable sums of money were advanced to persons engaged in agriculture, perhaps, not upon bills of sale, such as those against which this Bill was directed, but money advanced to the farmer to enable him to carry on his farming operations. But the effect in future would be this. The farmer would be unable to sell any of his cows or live stock in the ordinary course of business, or any of his hay or straw, although they were perishable articles, and the effect of being unable to sell them might ruin the man. In the ordinary course of business he was compelled to sell both his cattle and his hay and straw, and to replace them by other cattle and other hay and straw. If he were deprived of that advantage the bonâ fide borrower would be ruined. He (Mr. Whitley) did not see why machinery should be allowed to be substituted and not live stock and produce. He did not see that any great distinction could be drawn between them, and he understood that it was proposed to allow machinery to be replaced in manufactures. He failed to see why farm produce should not be allowed to be substituted for other farm produce upon a farm. Under the circumstances he supported the principle of the Amendment; but he hoped that his hon. and learned Friend would allow the exact wording of it to stand over for further consideration. At the same time, he trusted the Committee would accept the principle of the Amendment, because he was satisfied that it would work in a satisfactory manner, and give confidence to many people who were at present very much alarmed at the Bill as it stood.

Amendment negatived.

MR. WARTON

said, it was quite clear, from the readiness with which the hon. Member for Gloucester (Mr. Monk) accepted the Amendment, that he saw at once the importance of the matter. Having accepted it, and a kind of pledge having been given that the matter would be considered upon the Report, he (Mr. Warton) certainly thought that the Amendment, would be inserted in the Bill now, and it would then have been quite possible to bring up another Amendment, either on the part of the promoter of the Bill, or of the Attorney General. He considered that the Bill as it stood trifled with the property and the interest of farmers all over the country; and in order to give time for further consideration of the whole question he would move that the Chairman report Progress and ask leave to sit again.

Motion made, and Question proposed, "That the Chairman do report Progress, and ask leave to sit again."—(Mr. Warton.)

THE ATTORNEY GENERAL (Sir HENRY JAMES)

said, he thought that the hon. and learned Member for Bridport (Mr. Warton) had mistaken the spirit in which his Amendment was accepted. It was not positively accepted in principle; but it was thought that it involved a principle which required consideration. It was felt that if they did this in agriculture they should do it also in the case of manufactures. All these matters were discussed at great length in Committee, and the Committee agreed not to make the exceptions either in the case of agriculture or manufactures. If they did it in agriculture they would have then to consider to what extent the same principle ought to be applied to manufactures. Under these circumstances, he thought it would be better to consider the whole subject on the Report. There was no intention to stop the discussion of the subject, or to defeat the object which his hon. and learned Friend had in view if, on future consideration, it was thought a right one. He hoped his hon. and learned Friend would allow the Bill to proceed, and when a point was arrived at upon which there was a real conflict of opinion, there would probably be no objection to report Progress. He hoped his hon. and learned Friend would not insist upon pressing his Motion.

MR. WARTON

said, he wished to point out that it was very early in the Session, and that a delay of 10 or 12 days would not be a matter of much consequence. Surely, if they were to have the matter considered on the Report, he did not see what strong objection there ought to be against the insertion of his Amendment now, with a view of having it considered upon the Report. He could assure the Committee that the question he had raised involved matters of very great importance to all persons engaged in agricultural operations. The three days which had elapsed since the Bill was last before the House was too short a time to admit of its being understood by those who were interested in the question. The country, as a matter of fact, knew very little about its provisions. The Session was not very far advanced, and plenty of time remained during which the Bill could be properly considered. As the matter stood then, he was afraid, if the Bill was hurried through Committee, that farmers and others concerned in the measure would find that their interests had been interfered with without their knowledge.

MR. MONK

said, the hon. and learned Member for Bridport seemed to forget that the Bill was printed in July last. It had been submitted to a Committee, among whom were the hon. Member for Liverpool (Mr. Whitley), the hon. Member for Bristol (Mr. Lewis Fry), and other Gentlemen, and which was presided over by the hon. and learned Attorney General. The subject was carefully considered, evidence was taken upon all the points which had been raised by the hon. and learned Gentleman, and, after consideration, the Bill was amended in its present form. The hon. and learned Member for Bridport had asked him to undertake not to hurry the measure through the House. He had no intention whatever to hurry the Bill through any of its stages; but the hon. and learned Member must be aware that private Members had very few opportunities for bringing on their Bills at 1 o'clock in the morning. He would, therefore, appeal to the hon. and learned Member not to delay the Bill; and if he would agree to allow it to go through, he (Mr. Monk) would not take the Report before that day fortnight.

CAPTAIN AYLMER

said, he thought that the Bill should not be pressed forward any further on that occasion. It seriously affected the interests of a large number of persons, who had not been able, in the short time which had elapsed since the Bill was first before the House, to understand its provisions. As a rule, people in the country did not pay much attention to Bills of private Members until they saw that they were making some progress through the House; and it was only since the present Bill was committed that it began to attract the notice of persons interested. Seeing that it came on last Monday, they began to write letters to Members representing their districts, who had certainly not had time to look thoroughly into the matter. Under the circumstances he strongly advocated that a little longer time should be given for considering the Bill.

Question put, and negatived.

SIR WALTER B. BARTTELOT

said, he understood that his hon. Friend opposite (Mr. Monk) would consider the question raised by the hon. and learned Member for Bridport and supported by other Gentlemen sitting on that side of the House, and that if he saw no objection he would introduce new words into the clause on Report, which would carry out the object of the Amendment. If that was the undertaking of his hon. Friend, he should offer no further objection to the Bill being proceeded with on the present occasion.

MR. STUART-WORTLEY

asked the Attorney General whether the unregistered bill of sale would be void as against all persons and for all purposes whatsoever?

THE ATTORNEY GENERAL (Sir HENRY JAMES)

said, that was the intention.

Clause agreed to.

Clause 7 (Bill of sale to be void unless attested and registered) agreed to.

Clause 8 (Execution of bills of sale).

MR. H. G. ALLEN

said, he had to propose two alterations in this clause. First, he wished to add words making it imperative that the solicitor who attested the bill of sale should also explain to the grantor the nature of the transaction; and, secondly, his Amendment provided that the attesting solicitor who so explained the matter should not be, or have been, the solicitor of the grantee, nor an agent or partner of such last-mentioned solicitor. The Bill, as hon. Members were aware, had been submitted to a Committee for consideration; and in looking through the evidence given before them with regard to this matter, he found witness after witness of the class of persons who had the greatest experience in the adjustment of points arising under bills of sale saying that the explanation should be made by an independent person—that the bill of sale should be attested and the explanation of it made by a person who was not the attorney of the grantee. Then there was the great body of the evidence of the Judges of the County Courts, to the effect that they attributed a great deal of the fraud which undoubtedly took place in connection with these bills to the circumstance that the explanation was never properly made, because it was only attempted, or professed to be made, by the attorney acting for the grantee, who slurred over the transaction, and never made the grantor see the effect of it. It might be considered that a part of the second portion of his Amendment went rather far—namely, where the following words were introduced—"Nor has been the solicitor of the grantee." Even if the Committee should decide to strike out those words, he believed the Amendment would be very useful; and, as he had said before, he grounded his belief on the statements, which he held in his hand, of a large number of County Court Judges, who, without exception, laid great stress upon the point that the attorney attesting and explaining the bill of sale to the grantor should not be the solicitor of the grantee, inasmuch as a great many frauds had resulted from the contrary practice. Although the Bill required attestation by the solicitor, there was nothing in the body of the Bill as it stood which required that an explanation of the nature and effect of the transaction should be made to the grantor before the bill of sale was executed; and, therefore, it seemed to him that it was necessary, in the interest of the public, to amend this most important part of the measure. The statement of one of the County Court Judges that, in all probability, the proportion of fraudulent to genuine bills of sale was 10 to 1 was, perhaps, an exaggeration; but as these deeds were now prepared, there could be no doubt that they constituted abominable engines of fraud in many cases, and, in his opinion, the precautions taken to insure their proper execution and the perfect understanding by the unfortunate victims of the nature of the transaction into which they were being drawn could not be too strongly enforced.

Amendment proposed, In page 2, line 29, after "solicitor," leave out to the end of Clause, and insert, "and the solicitor of the grantor, and is not nor has been the solicitor of the grantee, nor an agent or partner of such last-mentioned solicitor, and unless such attesting solicitor shall, before the execution by the grantor of such bill of sale, carefully explain to the grantor the nature and effect thereof, and shall also state, in his attestation of such execution, that he is the solicitor of the grantor, and is not and has not been the solicitor of the grantee, nor the agent or partner of such last-mentioned solicitor, and that he has carefully made such explanation to the grantor as is hereinbefore required."—(Mr. Henry Allen.)

Question proposed, "That those words be there inserted."

MR. BULWER

agreed with the hon. and learned Member for Pembroke in the suggestion that the wording "nor has been the solicitor of the grantee" was too wide; yet he thought the mischief would not be met by simply leaving out the words, "nor has been." He suggested for the drafting of the Amendment that the attesting solicitor should not have been the solicitor to the grantee in the particular transaction. He had himself had practical experience of a case that resulted in the greatest injustice being done, in which the person employed was not the regular solicitor of the grantee. He was solicitor to the grantor; but acted as solicitor to the grantee in that particular transaction, a circumstance which brought about the very evil which the hon. and learned Member for Pembroke wished to avoid. It ought not to be left open to a solicitor to act for both parties in the transaction.

MR. MONK

pointed out that the Select Committee, after considering the point which had been so well urged by the hon. and learned Member for Pembroke, had gone very far in the direction that he desired. In the first place, it was thought that if this wording wore adopted, it would be necessary that two solicitors should be employed in the preparation of every bill of sale. The Committee had inserted in this clause that the bill of sale should be executed in the presence of a person who had authority to administer oaths for the Supreme Court of Judicature in England, which, of course, would insure that a solicitor of the higher class should be employed in the transaction. There was, however, one part of the hon. and learned Member's Amendment which he considered very desirable—namely, that portion of it which required it to be stated in the attestation that the solicitor had carefully explained to the grantor the nature and effect of the bill of sale. But the hon. and learned Member for Grantham (Mr. Mellor) had an Amendment on the Paper to that effect, which he (Mr. Monk) would very much prefer to the Amendment of the hon. and learned Member for Pembroke. He thought it was going rather too far to say that the attesting solicitor should not be "the agent or partner of such last-mentioned solicitor;" and he believed that the object of the hon. and learned Member would be covered by the provision of the Bill which required the bill of sale to be attested by a solicitor who was a Commissioner authorized to administer oaths in the Supreme Court of Judicature. They knew from the evidence taken before the Committee that solicitors receiving only the small sum of £1 a-week were sometimes kept in the office of money lenders for the purpose of attesting bills of sale. The case henceforward would be very different, because the solicitor would belong to a high class of the Profession; and as a Commissioner authorized to take oaths must be employed whenever a bill of Sale was executed, the chances of fraud in future would be very much reduced. Under the circumstances, he trusted the hon. and learned Member for Pembroke would withdraw the Amendment before the Committee, and allow that of the hon. and learned Gentleman the Member for Grantham to be moved.

MR. BULWER

said, he thought it was a great pity that a Bill of this importance should be discussed at that late hour (1.55). He certainly hoped the Committee would not be led away by the opinion expressed by the hon. Member for Gloucester (Mr. Monk). The fact of a solicitor being commissioned to take oaths in the Supreme Court of Judicature was, of course, some guarantee for his respectability; but, according to his experience, the hon. Member was under a little misapprehension in supposing that solicitors so commissioned were more respectable than those who were not.

MR. H. G. ALLEN

said, the proposal of the hon. Member for Gloucester did not meet the case he had in view, because with respect to the explanation, the point he wished to urge most strongly was that the attesting solicitor should not be the solicitor of the grantee. The Amendment of the hon. and learned Member for Grantham did not touch this, although his point was, undoubtedly, a very important one. Under the circumstances he was not disposed to withdraw his own Amendment.

MR. STUART-WORTLEY

pointed out that the evidence given before the Committee which considered the Bill was to the effect that the attestations took place in a most perfunctory way. It seemed a somewhat unlikely thing to expect that the attesting solicitor, although he might be a Commissioner to administer oaths, would take much trouble to explain the nature and effect of the bill of sale to the grantor. On the other hand, it was hardly to be supposed that a man about to give a bill of sale would be ready to spend money on an attesting solicitor. He would be glad to know whether there was to be any penalty for making an untrue attestation?

THE ATTORNEY GENERAL (Sir HENRY JAMES)

said, he was under some difficulty with regard to accepting the whole of the Amendment of the hon. and learned Member for Pembroke (Mr. Allen). He would suggest that the early portion of the Amendment should not be pressed, and that the words '' carefully explain to the grantor the nature and effect of the bill of sale, and shall," as proposed by the hon. and learned Member for Grantham (Mr. Mellor) should be moved. That would dispose of the first question; and then with regard to the solicitor, who, he agreed, should be the solicitor of the grantor, and not of the grantee, he would suggest that the second portion of the Amendment of the hon. and learned Member for Pembroke should be moved separately. There was nothing in the Bill which imposed any penalty upon a solicitor for making a false attestation; but, from his position of solicitor, it would follow that he would be answerable for his misconduct if it were known that he had made any misstatement in reference to the bill of sale. His own opinion was that the law, as it stood at present, was sufficient to meet that contingency.

MR. MONK

said, after the remarks of the Attorney General, he should be prepared to accept the latter portion of the Amendment of the hon. and learned Member for Pembroke.

Amendment, by leave, withdrawn.

Amendment proposed, In page 2, line 29, after "shall," insert" carefully explain to the grantor the nature and effect of the bill of sale, and shall."—(Mr. Attorney General.)

Amendment agreed to.

Amendment proposed, in page 2, line 34, to add "and is not the solicitor to the grantee."—(Mr. Henry Allen.)

MR. WARTON

said, these words did not state that the solicitor was not the solicitor to the grantee in this matter. The solicitor might have been for a long time properly solicitor to the grantee, and yet in this matter he might act for the grantor. He thought words should be inserted providing that the solicitor should not act as solicitor to the grantee in this particular transaction.

THE ATTORNEY GENERAL (Sir HENRY JAMES)

said, the words meant "is not at the present time," and, therefore, "is not in this particular matter." He did not think' there would be any difficulty about it.

Amendment agreed to.

Clause, as amended, agreed to.

Committee report Progress; to sit again upon Monday next.

House adjourned at a quarter after Two o'clock.