HC Deb 31 July 1900 vol 87 cc255-90

As amended (by the Standing Committee), considered.

MR. MARKS

said he desired to move a new clause, which was as follows— No company limited by shares, and registered under the Companies Acts, 1862 to 1898, shall carry on the business of a money-lender. The reason for the Bill was the necessity for revealing at all stages of the business the identity of a money-lender. It had been urged that most of the evils which arose from money-lending might be mitigated, if not entirely cured, if the money-lender were under an obligation to deal exclusively in his own name, and at all stages of the business to disclose his identity in a plain, unmistakable manner. The advantages which would accrue if such a system were in force were obvious. In the first place a money-lender trading in his own name would be so to speak under a bond for his own good behaviour. If he committed an act of dishonesty or treachery he would be practically cutting himself off from all future business, and any misconduct on his part and any litigation in which he was engaged would be before the public, and any penalty the law enforced against him would practically moan the loss of the goodwill of his business. It was within the recollection of all familiar with recent money-lending scandals, that one of the greatest evils connected with the business was the practice of a moneylender lending in an assumed name, afterwards approaching the borrower in another assumed name, and continuing the transaction in a third assumed name. A money-lender trading in his own name could not do any of these things, and therefore it would be an important safeguard if his identity should be disclosed. The question was, did the Bill sufficiently insure that disclosure. There was a provision in the Bill that a money-lender should register himself in his own or his usual trade name, and that he should do business in that name, and in that name only; that he should take securities in that name and that name only, and that if he took securities under any other name it should be competent for the courts to set aside the transaction. Therefore, every inducement was set before the money-lender to trade in his own name. But there was no provision in the Bill to prevent a money lender from registering himself as a limited liability company. If he registered himself as "A Banking Company" or "B Bank" that would be his usual trade name, and he would be justified in trading in it, and if the money-lender avails himself of the Limited Liability Acts, it would be practically impossible not only to disclose, but even to discover his identity. The money-lender had only to secure a solicitor and seven signatories to the Memorandum of Association to become a limited company, with all the powers of a limited company behind him. It might be only a one-man company, but whether that was so or not, it was a limited company protected by the Limited Liability Acts. Having issued his seven shares, nothing could prevent him from taking blank transfers of them back into his own name or the name of a nominee, and the bulk of the shares might be issued as bearer shares. Under such circumstances what power would enable the court to get at the person who was really engaged in money-lending? It might be said that the money-lender must have capital, but even that was not always required. A one-man company was formed, seven shares were issued to the signatories, and the balance of the shares might be issued to bearer and be in the hands of some nominee, and the money-lender might then proceed to lend money on debentures. The company would have no money at all, and if it were sued no penalty could be recovered, because there would be no capital to draw from. A man in such a position could, it was quite clear, set the fundamental provisions of the Bill at nought. The remedy might be a drastic one, but it was the only remedy. The Government admitted that the only way to put an end to the evils of money-lending was to compel the money-lender to disclose his identity. He had shown that if the money-lender registered himself as a limited liability company, he could not be compelled to disclose his identity. The new clause now proposed would enable the courts to compel the moneylender to disclose his identity. Would the Government accept the clause and give effect to their own professed intention, or would they refuse the clause and admit that the Bill could not accomplish its avowed object?

New clause— No company limited by shares, and registered under the Companies Acts, 1862 to 1898, shall carry on the business of a money-lender."—(Mr. Marks.) —brought up, and read the first time.

Motion made, and Question proposed, "That the clause be read a second time."

Sin ROBERT FINLAY

said he hoped the House would not accept the new clause. He agreed with what his hon. friend had said about the evils of one-man companies, which, however, were not confined to companies engaged in the business of money-lending. What they were endeavouring to secure by the Bill was that the identity of the person or the company carrying on money-lending business should be known. The hon. Member had described the clause as drastic. He thought it was the most drastic over proposed, because it provided that no company, whether in existence at the present time or to be formed in the future, should carry on the business of money-lending. Was there ever such wholesale confiscation? There were many perfectly respectable companies carrying on the business of money-lending, and occupying good positions.

MR. MARKS

said that the companies to which the right hon. Gentleman had referred would not come within the Bill.

SIR ROBERT FINLAY

said he was not sure of that. The proposal of his hon. friend was that all companies should have the right taken away from them of carrying on the business of money-lending. Why should not companies properly formed be allowed to carry on such business as long as proper securities were taken against abuse? Why should it be said arbitrarily that a particular branch of business, perfectly legitimate in its way if respectably conducted, and most useful to the poorer classes of the community, should not be carried on by a joint stock company the identity of which would be thoroughly well known?

Question put, and negatived.

MR. BECKETT (Yorkshire, N.R., Whitby)

said he hoped the Attorney General would see his way to accept the clause he now proposed to move, inasmuch as it would reduce the possibility of abuse. The object of the clause was to prevent any money-lender who had made a loan from increasing the rate of interest if the loan were renewed. The borrower was in a fair position to make a bargain in the first instance, but when he went to have the loan renewed he was practically in the power of the money-lender. Cases had been known where a man had borrowed £100, had paid back £120 and then owed £150, and such cases had arisen because the money-lender charged an exorbitant rate of interest on each renewal. Ho thought it would prevent many borrowers from becoming the victims of harsh and unconscionable money-lenders if the money-lenders were not permitted to raise the rate of interest on the renewal of the loan.

New clause— Should the borrower be unable to repay the principal of the loan, and the interest agreed upon at the specified date, and come to the money-lender for a renewal of the loan, the money-lender shall not be allowed to charge a higher rate of interest upon renewal than the rate agreed upon when the loan was first; made."—(Mr. Beckett.) —brought up, and read the first time.

Motion made, and Question proposed, "That the Clause be read a second, time."

SIR ROBERT FINLAY

said he hoped the House would not accept the clause. They had been very careful in avoiding everything that had the appearance of fixing by law the rate of interest, and now his hon. friend calmly asked the House to provide that a money-lender should never charge more than he had charged in the first instance.

MR. BECKETT

asked leave to withdraw the clause.

Motion and clause, by leave, withdrawn.

THE SECRETARY TO THE LOCAL GOVERNMENT BOARD (Mr. T. W. RUSSELL, Tyrone, S.) moved— In Clause 1, page 1, lines 6 and 7, to leave out 'this Act comes into operation,' and insert 'the commencement of this Act.'

Amendment agreed to.

*MR. LAWSON WALTON

said the House would remember that the Bill provided that judicial discretion should, be conferred upon judges of the High Court, and also of the inferior courts,, to set aside a money-lending contract if the transaction were harsh and unconscionable, and to substitute a judicial contract. He did not propose to disturb the first part of the two-fold provision, but he submitted that if a judge were to be given discretion to set aside a contract if he considered that the charges were excessive, and if he found certain other elements present in the transaction, it was most important that the conditions should be very carefully defined under which any judicial tribunal should be given such an extraordinary and novel power. He should like, in the interests of our system of law, to make a protest against the dangerous novelty of such a power being for the first time conferred upon our tribunals. The Bill sought to carry judicial discretion into the domain of legal principle. It was a precedent of most evil omen, and if Conservative legislation of the next century were to follow the lines indicated in the Bill it was difficult to discern where it would stop. The sanctity of contract was altogether ignored, and the fact that a bargain was made between persons quite capable of forming a judgment for themselves was dismissed, and the judge was empowered to substitute for that contract another contract which he thought better. He should like to follow for a moment the line of argument on which such a provision was founded. The amount charged for the loan was excessive; an excessive charge for a loan was a harsh transaction, a harsh transaction was unconscionable in its action, and, therefore, ought to be set aside. Apply that analogy to a contract of tenancy. The rent charged was excessive; to charge an excessive rent was a harsh transaction, a harsh transaction was unconscionable in its action, and therefore the transaction should be set aside. He was astonished that the Government should, with such a light heart, have imported into a measure of such small utility a principle so dangerous in its essence and so liable to be extended in unexpected directions. Of course, he was aware that some question might arise as to the moaning of the expression "harsh and unconscionable." The only light passed on its meaning was thrown by the First Lord of the Treasury, who said that "harsh and unconscionable" simply meant that county court judges should have the power which was formerly exercised by courts of equity. If that were so, why should it not be plainly stated in the Bill? Why should such an inexplicable expression as "harsh and unconscionable" be used instead of enacting in plain terms that all tribunals called upon to administer judicial functions in connection with the Act should be clothed with the jurisdiction appertaining to courts of equity? Such a construction would not, however, be adopted by the Attorney General, because if it could be shown that the courts already had that jurisdiction the whole argument would fall to the ground. That they had such a jurisdiction already was perfectly clear. The High Court and County Courts, by Section 89 of the Judicature Act of 1873, could grant relief from any bargain on the same equitable principles as were applied by courts of equity in ancient times. Therefore, the provision, except in so far as it framed procedure, was not in the least required, and the use of such an inexplicable expression would only lead to confusion. If it was not applicable to the case, the question arose whether they ought not in this measure to indicate what were the conditions on which the county court judge might act. He submitted that in any view some definition was needed, whether the principles were equitable or not in their character, and that it was most desirable that the county court judges, who would have largely to administer this Act, should have some assistance and some definition of principle. It was not easy to do so by means of a simple clause, but he had endeavoured to do so in the Amendment he had submitted. He would call attention to the terms of the Amendment. In the first place, where a county court judge was satisfied on inquiry that the loan was induced by fraud or deceit, he might set it aside as onerous. Then if he found that the borrower had not full knowledge and comprehension of the terms of the loan and of all the facts material to the transaction, he might say that on these grounds the borrower had not his eyes open, and was not on equal terms with the lender, and he might review the transaction. In the third place, whore the borrower was, to the knowledge of the money-lender, effecting the loan secretly, or was desirous of concealing the same or the circumstances connected therewith from some parson, the county court judge should have the power to re-open the transaction. Supposing the money-lender was appealed to by some person who had committed a theft, and that the money to be borrowed was to replace the money stolen, it was obvious that the lender and the borrower were not on equal terms. And so, if the money was borrowed by some person with a view to conceal some disgraceful transaction, or to conceal the loan from his trustees, that placed him at the mercy of the lender, and if this inequality in the relationship of the parties to the contract was established it was a clear case for re- opening the transaction. Lastly, in a case where the borrower was, to the knowledge of the money-lender, by reason of age, inexperience, ignorance of business, or mental or physical or moral infirmity, acting at a disadvantage in negotiating the loan—if they had a sharp man of the world on the one hand, and on the other an improvident and ignorant youth, who was an easy prey to the arts of the moneylender—pressure on the one hand and an easy victim on the other—obviously these were conditions under which the terms of the bargain ought not to be upheld. It might be said that in all these cases the transactions were "harsh and unconscionable." If that was so, why not substitute a definite and intelligible definition of what was "harsh and unconscionable"? If "harsh and unconsionable" in the Bill meant that which he suggested, why not insert the explanation and delete those words? If it meant something else there was no doubt whatever that the discretion which, might be employed by the county court judge would be carried into the domain of legal principle. The Amendment proposed in Committee upstairs to allow an appeal had not been inserted. The effect of that omission would be that in each county court district the law would vary according to the views of the judge. One judge would decide that these transactions were harsh and unconscionable, and ought not be enforced; and another judge would in every case insist that they should be enforced. In point of fact, the money-lenders would disappear from certain districts where the views of the judge were strict, and frequent the districts where the views of the judge were lax. He invited the Government to make some effort to narrow the use of the vague expression, "harsh and unconscionable."

Amendment proposed— In page 1, line 14, to leave out the words, 'the transaction is harsh and unconscionable,' and insert the words, (a)the loan was induced by fraud or deceit; or (b)the borrower bad not full knowledge and comprehension of the terms of the loan and of all facts material to the transaction; or (c) the borrower was to the knowledge of the money-lender effecting the said loan secretly, or was desirous of concealing the same or the circumstances connected therewith from some person; or (d)the borrower was to the knowledge of the moneylender by reason of age, inexperience, ignor- ance of business, or mental, physical, or moral infirmity, acting at a disadvantage in negotiating the said loan,' instead thereof."—(Mr. Lawson Walton.)

Question proposed, "That the words proposed to be loft out stand part of the Bill."

SIR ROBERT FINLAY

said there was one thing which his hon. and learned friend had said which did not surprise him, and that was that ho was not enamoured with the wording of his own clause. He confessed that his hon. friend was quite right in regarding his own clause with feelings of great coldness, which on closer acquaintance might ripen into a freezing dislike. Having deprecated the novelty in the Bill, he proceeded to propose a startling novelty of his own, which would be most mischievous. His hon. and learned friend said that the jurisdiction of the county courts to sot aside contracts as "harsh and unconscionable" was unknown. Had he never hoard of the equitable jurisdiction of the courts of equity in respect of such contracts, and might not that jurisdiction be beneficially exercised in the county courts?

MR. LAWSON WALTON

asked if the Attorney General meant to say that the ancient jurisdiction of the courts of equity was to be extended to the county courts? If so, he would withdraw his Amendment if that were inserted in the Bill.

SIR ROBERT FINLAY

said that the jurisdiction enjoyed by the courts of equity was closely analogous to that with which this section intended to clothe the county courts. His hon. and learned friend said that was unnecessary, because the county courts already enjoyed that jurisdiction under the Judicature Act.

MR. LAWSON WALTON

said his hon. and learned friend, if he looked into the matter, would find that, by the Judicature Act of 1873, the county courts now enjoyed the jurisdiction of the equity courts.

SIR ROBERT FINLAY

said he was reluctant to continue a technical argument of this kind. If any jurisdiction had not been exercised by the county courts, it would be for the reason that they did not possess it. The equitable jurisdiction with which the county courts had been clothed had been confined to certain specific matters, but not among them to this question of what was "harsh and Unconscionable." What wore the proposals of the lion, and learned Gentleman? The first was that where the loan was induced by fraud or deceit. But every court of equity would set aside a bargain induced by deceit, and if induced by fraud it would be set aside at once. The next proposal was that the county court judge was to have jurisdiction to reopen the transaction if the borrower had not full knowledge and comprehension of the terms of the loan and of all facts material to the transaction. But that was precisely one of the elements with which the county court judge would have to deal. Then the third proposal was that if the borrower was to the knowledge of the money-lender effecting the loan secretly, or was desirous of concealing the same, or the circumstances connected therewith from some person. But suppose a man of mature years was desirous of raising a loan and anxious not to communicate the fact to his wife, that clause would give a ground for setting it aside. Again the hon. and learned Gentleman proposed that if the borrower was to the knowledge of the money-lender, by reason of age, inexperience, ignorance of business, or mental, physical, or moral infirmity, acting at a disadvantage in negotiating a loan, the bargain might be reopened or set aside. But he would point out that a good many of the matters so painfully enumerated in that proposal were matters which could be considered by any court exercising equitable jurisdiction. It was in the last degree inadvisable to define such terms as were contained in the Amendment. It had been said by a great judge that the courts of equity had been rather careful not to define exactly what their powers were, because to do so would be to give directions to those who were desirous of evading their jurisdiction. His hon. and learned friend said that there should be an appeal, but the general law gave an appeal in matters over £20. He hoped that the picture which his hon. and learned friend had drawn as to different systems of equity being administered in county courts was too highly charged and would not represent the true state of things.

MR. LABOUCHERE

said he hoped they would not have many more of these essays on law. It was already past twelve o'clock. The Bill was really a good one, although it might be made better; but time was an element in making the Bill good or bad. He had come there that evening as a humble follower of the Financial Secretary of the Local Government Board—or whatever his official title might be—and he was going to vote for the words "hard and unconscionable," simply because they happened to be in the Bill. His hon. and learned friend differed from the hon. and learned Attorney General; but it was always the case with those lawyers that they never could agree with one another. The difference between his hon. and learned friend and the Government as to the interpretation of "harsh and unconscionable" was the difference between tweedledum and tweedledee, and did not strike at the principle of the Bill, and as it was now after twelve o'clock he hoped they would come to a division.

*MR. SYDNEY GEDGE

said the hon. Member who talked about essays on law in regard to this Bill forgot that they were altering the law, and were bound to take care that those alterations were for the people's advantage. The Bill came down from the House of Lords in March, and might very easily have been sent to the Standing Committee on Law soon after, instead of not till the month of July. It was the duty of the House, no matter however long they had to sit, not to pass the Bill without discussion. He did not altogether like the Amendment proposed by his hon. and gallant friend, but it was a great deal better than the words in the Bill. However clever the debating speech of the Attorney General might be there was this broad fact, that everything was to be loft to the discretion of the county court judge; he was not to be bound by any previous decision, even of the courts of equity. He was given the power to exercise his own fatherly or grandfatherly discretion, and to say, "In my opinion this transaction is harsh and unconscionable, and I will set it aside." The Amendment tried to state the grounds on which the judge might hold that the bargain was "harsh and unconscionable." The courts of equity wore bound by a series of decisions which had been given in the courts for the last 300 or 400 years. It was said that there was an appeal, but it was an appeal only on the law and not on the fact. The judge might say, "I hold as a matter of fact that the bargain is harsh and unconscionable," and there would be no appeal. Although he thought the Amendment could be very much improved if it became a substantive motion, he would support it.

MR. H. S. FOSTER (Suffolk, Lowestoft)

thought that this Amendment raised such important considerations in regard to the principal provisions of the Bill that the House would not be wasting time if it spent the whole evening in its consideration. They were now at a quarter past twelve considering the Bill, and every hon. Member was practically requested to sit down as soon as he possibly could. By that means the Bill might be passed, but he doubted whether lit would conduce to good legislation. The work was being scamped, and scamped work was work always badly done. The Amendment was to omit from the clause the very unusual words "harsh and unconscionable." The clause proposed to put on Her Majesty's judges the onus of saying whether a particular bargain was in their opinion a "harsh" bargain, whatever that might mean. The law could already deal with a bargain in which one party had the advantage of the other, or in which one party, by means of his position, had exercised duress on the other. But in future, if the Act passed, one party might question a bargain not on the ground that he was misled or that he did not know what he was doing when he entered into it, but on the ground that on reconsideration he considered the bargain a harsh one, and he might appeal to Her Majesty's judges to pronounce the opinion ex post facto that the bargain was a harsh one. It was seriously proposed that in future the duty should be cast upon judges of saying that a bargain was harsh and ought to be modified. Although they were dealing with a class against whom it was easy to excite prejudice and who had very few advocates in the House or out of it, he ventured to say that if such a provision was sanctioned it would be absolutely impossible to carry on the business of money-lending. Why should not Parliament also deal with persons dealing in other commodities? The money- lender dealt in money and had to deal in the open market, and doubtless he made the best use he could of his commodity. But what right had Parliament to pick out one particular class of trader and say that its bargains—not only the bargains of the fraudulent money-lender but of the class generally—should be revised by the courts? If such a provision were passed it would be impossible to stop with the present Bill. There were hundreds of transactions known to every Member of the House in which the profits far exceeded the profits connected with money-lending. Was it proposed to inquire whether traders had entered into "harsh and unconscionable" bargains because they sold goods at a price far in excess of the price to which the goods had fallen when the payment fell due? Everyone connected with business knew that the sanctity of contract was the mainstay of commerce, and were bargains to be revised simply because they turned out to be unprofitable, and were they to be made to appear harsh for one party to enforce because values had fallen? They were now imposing on the judges of the land the duty of revising contracts apart altogether from fraud or deceit. That was a very serious and a very dangerous departure which he for one would deprecate. He did not think there was any justification for the clause. The Attorney General himself had admitted that the majority of the money-lending class were respectable men, and therefore he supposed that a money-lender was entitled to justice. In his opinion, in passing this clause the House was embarking on a very dangerous course.

*MR. SPEAKER

The question before the House is not the clause, but the question whether the words "harsh and unconscionable" should be left out and other words substituted.

MR. H. S. FOSTER

said he would endeavour to follow the ruling of the Chair. It was his intention to confine himself to the actual Amendment, but he was endeavouring to show that if the words remained in the Bill the result would be that a contract which had been entered into by two parties within their rights, and well aware of what they were bargaining for, would be subject to revision, and that injustice would thereby be inflicted on one class of Her Majesty's subjects. He was endeavouring to plead for justice for the money-lender. He hoped that the Amendment of the hon. and learned Gentleman would be supported, although he supposed it was hopeless to expect it would be carried, because the Government desired to make the matter a question of confidence in themselves. But that did not absolve him from

*MR. LAWSON WALTON

said he proposed to move as an Amendment that after the words "harsh and unconscionable" there should be inserted the words "and was entered into under circumstances in which courts of equity would give relief." It was, he said, now clear that the words "harsh and unconscionable" were not in-

the duty of calling attention to what he considered the most unreasonable, dangerous, and unjust proposal contained in the clause.

Question put.

The House divided:—Ayes, 99; Noes, 32. (Division List No. 255.)

AYES.
Anson, Sir William Reynell Fitz Gerald, Sir Robert Penrose- Parkes, Ebenezer
Asher, Alexander Gibbons, J. Lloyd Pease, Herb. Pike(Darlington)
Ashmead-Bartlett, Sir Ellis Godson, Sir Augustus Fred. Penn, John
Atkinson, Rt. Hon. John Goschen, George J. (Sussex) Phillpotts, Captain Arthur
Balcarres, Lord Gray, Ernest (West Ham) Purvis, Robert
Balfour, Rt. Hon. A. J. (Manch'r Greville, Hon. Ronald Rentoul, James Alexander
Balfour, Rt Hn Gerald W (Leeds Guest, Hon. Ivor Churchill Richardson, Sir Thos. (Hartlep'l
Beach, Rt. Hn. Sir M. H. (Bristol Hamilton, Rt. Hn. Lord George Ridley, Rt Hon. Sir Matthew W.
Blundell, Colonel Henry Hanbury, Rt. Hon. Robert Wm. Ritchie, Rt Hon. Chas Thomson
Brassey, Albert Haslett, Sir James Horner Robertson, Herbert (Hackney)
Brodrick, Rt. Hon. St. John Hazell, Walter Round, James
Bullard, Sir Harry Healy, Maurice (Cork) Russell, T. W. (Tyrone)
Batcher John George Jackson, Rt. Hn. Wm. Lawies Seeley, Charles Hilton
Caldwell, James Jones, William (Carnarvonsh. Side bottom, William (Derbys.)
Cavendish, V. C. W. (Derbysh.) Labouchere, Henry Smith, Hon. W. F. D.(Strand)
Cecil, Lord Hugh (Greenwich) Lawrence, Sir E Durning-(Corn Stephens, Henry Charles
Chamberlain, Rt. Hon. J (Birm. Lawrence, Wm. F. (Liverpool Stirling-Maxwell, Sir John M.
Chamberlain, J Austen (Worc'r Leigh-Bennett, Henry Currie Talbot, Rt Hn J. G. (Oxf'd Univ.
Chaplin, Rt. Hon. Henry Loyd, Archie Kirkman Tanner, Charles Kearns
Collings, Rt. Hon. Jesse Macaleese, Daniel Thornton, Percy M.
Colomb, Sir John Charles Ready Macdona, John Cumming Tomlinson, Wm. Ed W. Murray
Cornwallis, Fiennes Stanley W. M'Arthur, Charles (Liverpool) Ure, Alexander
Crilly, Daniel M'Hugh, Patrick A. (Leitrim) Warr, Augustus Frederick
Cross, Herb. Shepherd (Bolton) M'Killop, James Welby, Lt.-Col. ACE(Taunton
Curzon, Viscount Marks, Henry Hananel Whitmore, Charles Algernon
Davies, Sir Horatio D(Chatham Mendl, Sigismund Ferdinand Willoughby de Eresby, Lord
Douglas, Rt. Hon. A. Akers- Monckton, Edward Philip Willox, Sir John Archibald
Dyke, Rt. Hon Sir William Hart More, Robt J. (Shropshire) Wylie, Alexander
Emmott, Alfred Muntz, Philip A. Wyndham, George
Fellowes, Hon. Ailwyn Edward Murray, Rt. Hn. A. G. (Bute) Wyvil, Marmaduke D'Arcy
Ferguson, Rt. Hn. Sir J(Manch'r Murray, Charles J. (Coventry) Young, Commander(Berks, E.)
Finch, George H. Nicol, Donald Ninian TELLERS FOR THE AYES—
Finlay, Sir Robert Bannatyne O'Dowd, John Sir William Walrond and Mr. Anstruther.
Fisher, William Hayes O'Neill, Hon. Robert Torrens
NOES.
Abraham, William (Cork, N. E.) Gedge, Sydney O'Malley, William
Asquith, Rt Hon Herbert Henry Gladstone, Rt. Hn Herbert John Provand, Andrew Dryburgh
Beckett, Ernest William Greene, Henry D. (Shrewsbury) Roberts, John Bryn (Eifion)
Bolton, Thomas Dolling Grey, Sir Edward (Berwick) Samuel, J. (Stockton-on-Tees)
Cawley, Frederick Griffith, Ellis J. Sullivan, Donal (Westmeath)
Channing, Francis Allston Hayne, Rt. Hon. Charles Seale- Tennant, Harold John
Colville, John Horniman, Frederick John Thomas, David Alfred(M'rthyr
Dewar, Arthur MacDonnell, Dr. M. A.(Q'n's.C. Tully, Jasper
Donelan, Captain A. M'Kenna, Reginald
Doogan, P. C. Morgan, W Pritchard (Merthyr TELLERS FOR THE NOES—
Duckworth, James Moss, Samuel Mr. Lawson Walton and Mr. Billson.
Foster, Harry S. (Suffolk) O'Brien, Patrick (Kilkenny)

tended to confer jurisdiction, but only that every county court should administer the jurisdiction of a court in equity. When that ambiguity was cleared away the Bill might have an intelligible form given to it, and instead of depending on a vague inquiry which was bounded only by the collective judicial conscience of fifty-six county court judges, they might have certain definite principles with which they were quite familiar to guide them.

Amendment proposed— In page 1, line 14, after the word 'unconscionable,' to insert the words 'and was entered into under circumstances in which the courts of equity would give relief.'"—(Mr Lawson Walton.)

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

SIR ROBERT FINLAY

said there was not the same objection to this as to the last Amendment; but he would suggest that the form of the words should be "or is otherwise such that the courts of equity would give relief."

*MR. LAWSON WALTON

said he would accept the Attorney General's Amendment and withdraw his own.

Amendment, by leave, withdrawn.

MR. H. S. FOSTER

was glad that the Government had recognised the principle contended for; and the concession was an important one. He took it that the words of the Attorney General's Amendment would really govern the words "harsh and unconscionable."

*SIR WILLIAM ANSON (Oxford University)

welcomed the Amendment as ho now understood it to mean that it was desirable to give to the county courts every conceivable jurisdiction of the courts of equity in reopening transactions. He had doubted whether the word "unconscionable" had all the significance which the Attorney General had attached to it, and the new words would meet any shortcomings if the words previously used were not wide enough.

Sir ROBERT FINLAY'S

Amendment was agreed to.

MR. H. S. FOSTER

said the object of the Amendment he now moved was to identify the account as the account which was being dealt with in respect of the transaction to be reopened. There was an impression that the clause proposed not only to confer power to reopen the particular account which was the subject of the litigation, but also to reopen any previous account.

Amendment proposed— In page 1, line 19, after the word 'any,' to insert the word 'such.'"—(Mr. H. S. Foster.)

Question proposed, "That the word 'such' be there inserted."

SIR ROBERT FINLAY

said that the Amendment was quite unnecessary.

Question put, and negatived.

MR. H. S. FOSTER

said he desired to move an Amendment the object of which was that if the plaintiff or borrower applied for relief the courts should be empowered to set off any sums due by him to the money lender in respect of some other transaction against any award of the courts. When the matter was discussed in Committee it appeared to be accepted that there would be a set-off, but grave doubt was expressed as to whether that would be so, and he therefore moved his Amendment which, expressly provided for it.

Amendment proposed— In page 1, line 25, after the word 'it,' to insert the words, 'subject to any oilier sum which the Court may find due from the debtor, and which sum shall be allowed as a set-off.'"—(Mr. H. S. Foster.)

Question proposed, "That those words be inserted."

MR. T. W. RUSSELL

said he was not a lawyer, but it was perfectly clear to him that when an account was taken between the parties airy judge would allow a set-off.

*MR. SYDNEY GEDGE

said he was a lawyer, but he would not profess to-give an opinion on the subject, especially as lawyers belonging to what was called the higher branch of the profession differed regarding it. Everyone knew that when a judge ordered a defendant to pay a sum of money, the defendant could not set up against that judgment that the plaintiff owed him money. He could not understand the objection to the Amendment, which would only make certain that which the Secretary to the Local Government Board declared to be clear, but which in the opinion of lawyers was not so.

MR. TOMLINSON

said him that the words were necessary in order to secure that there should be a set-off.

MR. LAWRENCE (Liverpool, Abercromby),

in explaining the next Amendment, said that it seemed to him that the clause as it stood was very much too extensive, for reopening an account. As he understood it, it might be that the transaction had been closed for ten or fifteen years and a new transaction entered into; and if that new transaction came up for litigation the original transaction might be reopened. That appeared to him to be altogether a mistake.

Amendment proposed— In page 2, line 5, after the word 'lent,' to insert the words 'Provided that nothing in this section shall authorise the reopening of any statement, settlement of account, or any

Question put.

The House divided:—Ayes, 5; Noes,104. (Division List No. 256.)

AYES.
Greene, Henry D. (Shrewsbury) Thomas, David Alfred (Merthyr TELLERS FOR THE AYES—
Lawrence, Wm. F. (Liverpool) Tomlinson, Wm. Edw. Murray Mr. Harry Foster and Mr. Sydney Gedge.
Sullivan, Donal (Westmeath)
NOES.
Anson, Sir William Reynell Emmott, Alfred O'Brien, Patrick (Kilkenny)
Asher, Alexander Fellowes, Hon. Ailwyn Edward O'Dowd, John
Ashmead-Bartlett, Sir Ellis Finch, George H. O'Neill, Hon. Robert Torrens
Asquith, Rt Hon Herbert Henry Finlay, Sir Robert Bannatyne Parkes, Ebenezer
Atkinson, Rt. Hon. John Fisher, William Hayes Pease, Herbert Pike (Darlingt'n
Balcarres, Lord Gibbons, J. Lloyd Penn, John
Balfour, Rt. Hn. A. J. (Manch'r) Gladstone, Rt. Hn. Herbert J. Phillpotts, Captain Arthur
Balfour, Rt. Hn. G. W. (Leeds) Godson, Sir Augustus Fred. Provand, Andrew Dryburgh
Beach, Rt. Hn. Sir M. H. (Bristol Gray, Ernest (West Ham) Purvis, Robert
Beckett, Ernest William Greville, Hon. Ronald Rentoul, James Alexander
Billson, Alfred Grey, Sir Edward (Berwick) Richardson, Sir T. (Hartlepool
Blundell, Colonel Henry Griffith, Ellis J. Ridley, Rt. Hon. Sir Matt. W.
Bolton, Thomas Dolling Hamilton, Rt. Hon Lord George Ritchie, Rt. Hn. Chas. Thomson
Brassey, Albert Hanbury, Rt. Hon. Robert Wm. Roberts, John Bryn (Eifion)
Brodrick, Rt. Hn. St. John Haslett, Sir James Horner Round, James
Bullard, Sir Harry Hayne, Rt. Hon. Charles Seale- Russell, T. W. (Tyrone)
Butcher, John George Hazell, Walter Samuel, J. (Stockton-on-Tees)
Caldwell, James Healy, Maurice (Cork) Seely, Charles Hilton
Cavendish, V. C. W. (Derbys. Horniman, Frederick John Smith, Hon. W. F. D. (Strand)
Cecil, Lord Hugh (Greenwich) Jones, William (Carnarvonsh. Talbot, Rt. Hn. J.G (Oxf'd Univ.
Chamberlain, Rt. Hon. J.(Birm. Labouchere, Henry Tanner, Charles Kearns
Chamberlain, J. Austen (Worc'r Lawrence, Sir E. Durning-(Corn Thornton, Percy M.
Channing, Francis Allston Leigh-Bennett, Henry Currie Tully, Jasper
Chaplin, Rt. Hon. Henry Lowther, Rt Hn J W(Cumberl'd Ure, Alexander
Collings, Rt. Hon. Jesse Loyd, Archie Kirkman Walton, J. Lawson (Leeds, S.)
Colomb, Sir John Charles Ready Macaleese, Daniel Warr, Augustus Frederick
Colviile, John Macdona, John Camming Welby, Lt. -Col. A. CE(Taunt'n
Cornwallis, Fiennes Stanley W. M'Arthur, Charles (Liverpool) Willox, Sir John Archibald
Crilly, Daniel M'Hugh, Patrick A. (Leitrim Wylie, Alexander
Curzon, Viscount M'Killop, James Wyngham, George
Davies, Sir Horatio D(Chatham More, Robt. Jasper (Shropshire) Wyvil, Marmaduke D'Arcy
Dewar, Arthur Morton, Edw. J. C.(Devonport) Young, Commander(Berks, E.)
Donelan, Captain A. Moss, Samuel
Doogan, P. C. Murray, Rt. Hn. A. G. (Bute) TELLERS FOR THE NOES—
Douglas, Rt. Hon. A. Akers- Murray, C. J. (Coventry) Sir William Walrond and Mr. Anstruther.
Duckworth, James Nicol, Donald Ninian

agreement unless within two years of the date of the transaction complained of.'"—(Mr. Lawrence.)

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

SIR ROBERT FINLAY

hoped the hon. Gentleman would not press his Amendment. Some of the worst cases were those in which by new transactions the account went on rolling bigger and bigger.

Amendment, by leave, withdrawn.

MR. WARR (Liverpool, East Toxteth),

in proposing the next Amendment, said he attached the greatest possible impor- tance to Sub-section 2 of Clause 1, but he submitted that it would be ineffective unless the borrower or surety was able to make application to the court, whether the loan was mature or not. When a borrower came to consult his friends and they desired to come to some arrangement, but found that the loan would not mature for a considerable time, it would be monstrous that the extortionate interest should keep on running until the loan matured.

Amendment proposed— In page 2, line 5, after 'lent,' to insert, 'And the court shall have power, not with-standing any provision or agreement to the contrary, to entertain any application under this Act by the borrower or surety or other person liable, notwithstanding that the time for repayment of the loan, or any instalment thereof, may not have arrived.'"—(Mr. Warr.)

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

MR. T. W. RUSSELL

I accept the Amendment.

MR. H. S. FOSTER

asked why the Government resisted this Amendment in Committee, and accepted it now.

SIR ROBERT FINLAY

said he doubted whether the words were necessary, but he was satisfied, on consideration, that they could do no harm.

Question put, and agreed to.

A formal Amendment made.

*MR. BUTCHER (York)

said his object in moving the Amendment standing next on the Paper was, as a friend of the Bill, who desired to see it shaped in the interest of all parties, to secure that there should be an effective appeal in proper cases from the decision of the county court judge. By the Bill they were giving to the inferior courts a very wide, extended, and delicate jurisdiction for the first time. This jurisdiction has hitherto been exercised by the judges of the Chancery Division, but their decisions have been subject to appeal not only on questions of law, but on questions of fact. It was that unrestricted right of appeal which he wished to give in cases decided in the inferior courts. It would not only secure justice to the individual, but uniformity in practice. Under the existing law there was an appeal from the inferior courts on questions of law, but not of fact. But a judge of the inferior court had under this Bill to decide whether the interest charged was excessive, whether the amounts charged for expenses were excessive, whether the transaction was "harsh and unconscionable," and what sum was to be considered due in respect of principal and interest. Now all these were questions of fact, and having regard to that, an appeal on questions of law was altogether illusory. On every point the county court judge would give no reason in law for his decision. All he would say was that so and so was a question of fact, and he would decide accordingly. The House would observe that his Amendment was limited to giving an appeal from the inferior courts of England and Wales. There was a very good reason for that, because in Scotland and Ireland there was already an appeal from the inferior courts on questions of fact as well as of law. There was only one objection against the Amendment, and that was that it might lead to costs. His answer was two-fold. If a bad decision was given the fact that the appeal would cost something was no ground for refusing to give that appeal. The second was that the money-lender was exceedingly unlikely to appeal, except in cases where he was clearly in the right, as it would damage his reputation.

Amendment proposed— In page 2, line 15, after the word 'notice,' to insert the words, '(5) Notwithstanding anything contained in the Acts or Rules or Order in Council regulating the proceedings on appeal from inferior courts, any party aggrieved by the judgment, direction, decision, or order of the judge of any inferior court in England or Wales before whom proceedings are taken under this section may appeal from the same to a divisional court, subject to such conditions as may from time to time be provided by rules of the Supreme Court; provided that, unless by special leave of the said judge, there shall be no appeal unless the amount claimed by the money-lender in respect of which the proceedings are taken shall exceed the sum of twenty pounds; provided also, that if on the hearing of the appeal it shall appear to the divisional court that a new trial ought to be had, it shall be lawful for the said court, if it shall think fit, to order that the verdict and judgment shall be set aside, and that a new trial shall be had."—(Mr. Butcher.)

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

SIR ROBERT FINLAY

said his hon. and learned friend had referred to one objection to the proposal—namely, the costs that might be run up if the right of appeal were given, and he was afraid that the longer purse would have the advantage. His hon. and learned friend had suggested that a money-lender unless he were in the right would not damage his reputation by appealing to the superior courts, but experience hardly bore that out. He was not at all certain that the Amendment would give the right of appeal as to the facts. The only appeal from county courts at present was in matters of law and equity, and he thought in a measure of that kind it was much better to adhere to the general system of procedure in England, according to which there was no appeal from county courts except on questions of law and equity.

MR. BECKETT

said he would really appeal to the Government to reconsider their decision on the matter, and if they could see their way to accept the Amendment it would remove many of the objections taken to the Bill. The Attorney General had suggested that the right of appeal would be in favour of the money-lender, but as a matter of fact a moneylender was extremely unwilling to go into court. The Bill was really the outcome of prejudice, because the Committee which was appointed to inquire into money-lending inquired only into the abuses of the business, and refused to listen to the other side, and they came away with the impression that the whole system involved gigantic abuse. The Isaae Gordons were quite in a small minority, and the majority of the money-leaders were a thoroughly respectable, honest, and straightforward set of men, and deserved protection just as much as any other class. The amount of money involved in money-lending transactions ought to be considered by the Government. It was estimated at fifty millions annually; the business was most beneficial to the districts in which it was carried on, and it would be most unfortunate if it were hampered and restricted. The Government said they wished to stop harsh dealing. That was quite right, but at the same time they ought to be careful to refrain from doing anything that would hamper legitimate business. The provisions of the Bill as they stood involved serious danger of that, but the money-lending fraternity would be quite willing if they even secured the protection afforded by his hon. friend's clause. The Bill created new offences and imposed serious penalties, and that was again another reason why the moneylender should be afforded protection. If by this Bill the business of money-lending wore made insecure, it would be driven underground, and would break out in all sorts of ways, with the result that borrowers would find themselves much worse off than they are at present. Again, if the matter were to be left to the county court judges, different decisions would be given in different parts of the country, and a money-lender would not know on what principles he could carry on his business. One judge might consider 5 per cent, unconscionable. Mr. Justice Mathew fixed the limit at 10 per cent, other judges at 25 per cent., and some even at 60 per cent. under certain circumstances. How could money-lending be carried on under such conditions? It was in order to introduce some regularity into the decisions of county court judges that his hon. friend desired to press his Amendment on the attention of the Government, and also in the interests of the business of the country, which was to a great extent dependent on money-lending. He trusted, therefore, the Government would accept the Amendment.

MR. LABOUCHERE

said that the term "money-lender" in the Bill meant usurer, and usurers were a class against whom there was a very ancient feeling. If the hon. Gentleman read the Old Testament, he would find very strong observations regarding them. He agreed with the Attorney General's view of the Amendment. If a man got a decision against a usurer, then he would be told it would be of no benefit to him, because the usurer would appeal to a higher court. In fact, the usurer would make it part and parcel of his business, whenever a decision was given against him, to appeal, and then to endeavour to make some arrangement to get what he could out of the man with whom he had to deal. The only argument used in favour of the Amendment was that if the right of appeal were granted it would not be used because the money-lender would not desire publicity; but he had already been into one court, and he was not a modest, bashful sort of man. He would remind the hon. Gentleman of the fact that a certain usurer named Shylock went into the supreme court of Venice and claimed his pound of flesh, and was not in the least ashamed of it.

*MR. SYDNEY GEDGE

said the part he was taking in connection with the Bill was in the interest of the borrower. It was assumed by the hon. Member for Northampton that judgment would always be given against the money-lender and in favour of the borrower, and the hon. Member thought that the money-lender ought not to have the right of appeal. But, supposing a judge taking a strong view of the sanctity of a contract refused relief to the borrower, then he also would be refused the right of appeal. Surely both parties ought to be entitled to appeal except in cases under £20. If a case came before a puisne judge the defendant and the plaintiff would both have the right to appeal, if aggrieved by a decision, on the facts as well as the law, and the puisne judge was superior in legal knowledge and experience to a county court judge. To grant an appeal in one case and to refuse it in the other was making one law for the rich and another for the poor, and was not acting justly towards different classes of persons. He hoped the Government would accept the Amendment. It was only by an appeal to the High Court of Justice that definite lines could be laid down.

SIR WILLIAM ANSON

said they were enlarging very greatly the sphere of the jurisdiction of the county courts in matters on which the decisions of the courts of equity were not so numerous as to afford an adequate guide. It would, he believed, be an unfortunate thing if a body of law were developed in this way by the inferior courts without the possibility of any appeal. He thought that was an argument that ought to have some weight with the Government in considering the Amendment.

MR. H. S. FOSTER

said ho would also join in the appeal to the Government to reconsider their decision, although he was afraid the appeal fell on somewhat deaf ears. One fact which was brought out very clearly in the Com- mittee was that the right which the Amendment asked for for England was enjoyed in Ireland and Scotland, and that it worked satisfactorily in those countries. If the Bill passed in its present form this curious anomaly would be presented, that there would be an appeal from every inferior court in Scotland and Ireland, but no appeal from an inferior court in England. They were, for the first time, largely extending the powers of the county court judges, and in such a way as to depend largely on individual discretion. The only thing that was said against the appeal—apart from the fact that they were only dealing with moneylenders who were, as the hon. Member for Northampton said, a class outside the law, such was the unjust spirit and prejudice with which this measure had been conceived—was that it would involve cost. Bearing in mind that important statement of the hon. Member for Whitby, as to the prejudice with which money-lenders were regarded, and the difficulty of their obtaining justice, he should think that an appeal by a money-lender would be enormously risky. The borrower would have very little cause to fear, and he should say that if the decision was in favour of the borrower there would be very little chance of the money-lender coming to terms. If the county court judges went wrong—as judges even of the high courts sometimes did—it was right to give a borrower the same right of appeal from the inferior courts on questions of fact as on questions of law.

DR. TANNER (Cork County, Mid)

said he had listened to the various arguments that had been raised. In the first place the hon. Gentleman who came from the city of Cork, but was Member for York, had absolutely got no knowledge of all this money-lending business——

*MR. SPEAKER

The hon. Member is quite irrelevant.

DR. TANNER

said he would point out in connection with this Amendment that nearly all the Gentlemen who supported it, with one exception, were lawyers hanging on to the coat-tails of the moneylenders, and for that reason alone he would not support it.

Question put.

A division being challenged, Mr. SPEAKER named Mr. Tally and Mr. P. A. McHugh as Tellers for the Ayes.

MR. BUTCHER

said he understood the understood the Tellers were to be Mr. Beckett and himself.

MR. SPEAKER

The hon. Member for North Leitrim gave that information

MR. BECKETT

said the object of the Amendment which he desired to move was that the actual sum of money should be paid into court, and that if the borrower were unable to pay a lump sum he might by order of the court pay by instalments. The prejudice against money-lenders was so strong that they were considered in some cases not even entitled to their own. The Amendment In page 2, line 15, at end, to insert, 'Provided also, that no such account shall be taken unless or until the actual amount advanced by the money-lender to the person against whom the proceedings are taken, after deducting any

at the Table, which was a highly irregular thing to do without consulting the hon. Member in charge of the Amendment. Tellers for the Ayes, Mr. Butcher and Mr. Beckett.

The House divided:—Ayes, 12; Noes, 91. (Division List No. 257.)

AYES.
Anson, Sir William Reynell Griffith, Ellis J. Thomas, David A. (Merthyr)
Cornwallis, Fiennes Stanley W. Lawrence, Wm. F. (Liverpool) Tomlinson, Wm. Edw. Murray
Emmott, Alfred M'Hugh, Patrick A. (Leitrim) TELLERS FOR THE AYES—
Foster, Harry S. (Suffolk) Morgan, W. P. (Merthyr) Mr. Butcher and Mr. Beckett.
Gedge, Sydney Moss, Samuel
NOES.
Asher, Alexander Fellowes, Hon. Ailwyn Edward O'Dowd, John
Ashmead-Bartlett, Sir Ellis Finch, George H. O'Neill, Hon. Robert Torrens
Asquith, Rt Hon Herbert Henry Finlay, Sir Robert Bannatyne Parkes, Ebenezer
Atkinson, Rt. Hon. John Fisher, William Hayes Pease, Herb. Pike (Darlington
Austin, M. (Limerick, W.) Gibbons, J. Lloyd Penn, John
Balcarres, Lord Gladstone, Rt. Hn Herbert John Phillpotts, Captain Arthur
Balfour, Rt. Hn. A. J. (Manch'r) Godson, Sir Augustus Fred. Provand, Andrew Dryburgh
Balfour, Rt Hn Gerald W (Leeds Gray, Ernest (West Ham) Purvis, Robert
Beach, Rt. Hn. Sir M. H. (Bristol Greene, Henry D. (Shrewsbury) Richardson, Sir T. (Hartlep'l)
Billson, Alfred Greville, Hon. Ronald Ridley, Rt. Hn. Sir Matthew W.
Blundell, Colonel Henry Grey, Sir Edward (Berwick) Ritchie, Rt. Hn. Chas. Thomson
Bolton, Thomas Dolling Hamilton, Rt. Hon. Lord Geo. Roberts, John Bryn (Eifion)
Brassey, Albert Hanbury, Rt. Hon. Robert W. Round, James
Brodrick, Rt. Hon. St. John Haslett, Sir James Horner Russell, T. W. (Tyrone)
Bullard, Sir Harry Hayne, Rt. Hon. Charles Seale- Samuel, J. (Stockton-on-Tees)
Caldwell, James Hazell, Walter Smith, Hon. W. F. D. (Strand
Cavendish, V.C.W.(Derbysh.) Healy, Maurice (Cork) Sullivan, Donal (Westmeath)
Cecil, Lord Hugh (Greenwich) Horniman, Frederick John Tanner, Charles Kearns
Chamberlain, Rt. Hon. J.(Bir.) Jones, William (Carnarvonsh. Tully, Jasper
Chamberlain, J. A. (Worc'r) Labouchere, Henry Ure, Alexander
Channing, Francis Allston Lawrence, Sir E. Durning-(Corn Walton, John Lawson(Leeds, S.
Chaplin, Rt. Hon. Henry Leigh-Bennett, Henry Currie Warr, Augustus Frederick
Ceilings, Rt. Hon. Jesse Loyd, Archie Kirkman Willox, Sir John Archibald
Colomb, Sir John Chas. Ready Macaleese, Daniel Wylie, Alexander
Colville, John Macdona, John Gumming Wyndham, George
Crilly, Daniel M'Arthur, Charles (Liverpool) Wyvill, Marmaduke D'Arcy
Curzon, Viscount M'Killop, James Young, Commander (Berks, E.)
Davies, Sir Horatio D (Chatham More, R. Jasper (Shropshire)
Dewar, Arthur Murray, Rt Hn A Graham(Bute TELLERS FOR THE NOES—
Doogan, P. C. Murray, Charles J. (Coventry Sir William Walrond and Mr. Anstruther.
Douglas, Rt. Hon. A. Akers- Nicol, Donald Ninian
Duckworth, James O'Brien, Patrick (Kilkenny)

sum or sums (if any) repaid to the money-lender, whether for principal, interest, bonus, or otherwise connected with the transaction, shall have been paid either to the moneylender or into court, but the court may order repayment of the actual amount advanced, or the balance for the time being owing by instalments, and adjourn the application for such amount until the repayment has been made.'"

MR. CALDWELL,

on a point of order, said he desired to know whether an Amendment standing in the name of the hon. Member for the Toxteth Division of Liverpool, which had been accepted, did not cover the Amendment now moved.

*MR. SPEAKER

The principal object of the hon. Member's Amendment has already been provided for in the previous Amendment, which has been accepted.

Amendment proposed— In page 2, after line 17, to add 'In the application of this Act to Scotland this section shall read as if the words "or otherwise any court of equity would give relief" were omitted therefrom.'"—(The Lord Advocate.)

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

MR. H. S. FOSTER

asked for an explanation of the Amendment.

*THE LORD ADVOCATE (Mr. A. GRAHAM MURRAY,) Buteshire

said that the section as it originally stood would not present any practical difficulty in its application to Scotland, because the words "harsh and unconscionable" were ordinary words in the English language, and the Scotch courts would construe them accordingly, and would apply them by analogy to the Scotch law. But if the words "any court of equity would give relief" were included it would create a difficulty, because in every such case a couple of English counsel would have to be examined in order to know whether a court of equity would or would not give relief.

MR. SYDNEY GEDGE

asked if the hon. Member for South Leeds was aware that the Lord Advocate intended to move the Amendment, because it appeared to him that the words had been assented to by the Government.

*MR. A. GRAHAM MURRAY

said he did not know whether the hon. Member for South Leeds was aware that he would move the Amendment, but the hon. Member ought to be in his place.

SIR WILLIAM ANSON

said the object of the Amendment he was about to move was to carry out what he believed to be one of the purposes of the Bill—namely, to ensure that the borrower should be able to ascertain from a register, if necessary, who the individual was with whom he was dealing. Now, however, that limited companies were to be allowed to carry on the business of money-lending, it appeared to him that the Amendment would not carry out the object for which it was intended, and he would therefore not move it.

MR. H. S. FOSTER

moved that the debate be now adjourned. They had arrived at two o'clock in the morning. In Committee the last part of the Bill was rushed through without discussion on the express condition that there would be full opportunity for discussion on the Report stage. He himself, on that request, did not move a great many Amendments which he intended to move. It must be perfectly clear to the House that they were not free at that time of the morning. They felt that they were keeping hon. Members out of bed. [HON. MEMBERS: No.] He was quite prepared to go on till twelve o'clock that day, but he wished to feel that he was relieved of the odium of keeping Members out of bed. They were looked upon with a species of personal resentment by Members on the Front Bench because they dared to speak to their Amendments.

Motion made, and Question put, "That further proceedings on consideration, as amended, be adjourned."—(Mr. H. S. Foster.)

The House divided:—Ayes, 19; Noes, 65. (Division List No. 258.)

AYES.
Billson, Alfred Griffith, Ellis J. Sullivan, Donal (Westmeath)
Bolton, Thomas Dolling Hayne, Rt. Hon. Charles Seale- Tanner, Charles Kearns
Caldwell, James Horniman, Frederick John Tomlinson, Wm. Edw. M.
Colville, John Macaleese, Daniel
Dewar, Arthur Morgan, W. Pritchard (Merthyr TELLERS FOR THE AYES—
Duckworth, James Moss, Samuel Mr. Harry Foster and Mr. David Thomas.
Gedge, Sydney Roberts, John Bryn (Eifion)
Greene, Henry D. (Shrewsbury) Samuel, J. (Stockton-on-Tees)
NOES.
Anson, Sir William Reynell Austin, M. (Limerick, W.) Beach, Rt Hn. Sir M. H. (Bristol)
Asher, Alexander Balcarres, Lord Beckett, Ernest William
Ashmead-Bartlebt, Sir Ellis Balfour, Rt. Hon. A. J. (Manch'r Brodrick, Rt. Hon. St. John
Atkinson, Rt. Hon. John Balfour, Rt Hn Gerald W (Leeds Bullard, Sir Harry
Cavendish, V. C. W (Derbyshire Greville, Hon. Ronald Pease, Herbert Pike(Darlingt'n
Cecil, Lord Hugh (Greenwich) Hamilton, Rt. Hon. Lord George Penn, John
Chamberlain, Rt. Hon. J. (Birm Hanbury, Rt. Hon. Robert Wm. Phillpotts, Captain Arthur
Chamberlain, J. Austen(Worc'r Haslett, Sir James Horner Purvis, Robert
Chaplin, Rt. Hon. Henry Healey, Maurice (Cork) Richardson, Sir T. (Hartlep'l)
Collings, Rt. Hon. Jesse Jones, William (Carnarvonsh. Ritchie, Rt. Hon. C. Thomson
Cornwallis, Fiennes Stanley W. Lawrence, Sir E Durning-(Corn. Russell, T. W. (Tyrone)
Crilly, Daniel Leigh-Bennett, Henry Currie Smith, Hon. W. F. D.(Strand)
Curzon, Viscount Loyd, Archie Kirkman Tally, Jasper
Davies, Sir Horatio D (Chatham Macdona, John Cumming Warr, Augustus Frederick
Doogan, P. C. M'Hugh, Patrick A. (Leitrim) Willox, Sir John Archibald
Douglas, Rt. Hon. A. Akers- M'Killop, James Wylie, Alexander
Fellowes, Hon. Ailwyn Edward More, Robt. Jasper (Shropshire) Wyndham, George
Finch, George H. Marray, Rt Hn A Graham (Bute Wyvill, Marmaduke D'Arcy
Finlay, Sir Robert Bannatyne Murray, Charles J. (Coventry Young, Commander (Berks, E.
Fisher, William Hayes Nicol, Donal Ninian
Gibbons, J. Lloyd O'Brien, Patrick (Kilkenny) TELLERS FOR THE NOES—
Godson, Sir Augustus Frederick O'Dowd, John Sir William Walrond and Mr. Austruther.
Gray, Ernest (West Ham) O'Neill, Hon. Robert Torrens

Motion made, and Question, "That this House do now adjourn"—(Sir William Walrond)—put, and agreed to.

MR. H. S. FOSTER

in moving to strike out Sub-section (1) (a) of Clause 2, said that the sub-section, as drawn, limited prosecutions. The clause required the money-lender to do a varied number of things, and made it a penal offence if he failed to comply with these things. He was required to register himself as a money-lender, and to carry on his business in his registered name and in no other, and at his registered address and no other. Then he had to furnish the borrower with certain documents, and the clause went on to say that if he failed to do any of those things he would be liable to prosecution and punishment. The object of his Amendment was to extend the same protection as was provided in regard to Sub-section (1) (a) to the other subsections—namely, that before prosecution was instituted the permission of the Law Officers of the Crown should be obtained. That permission would always be obtained if a prima facie case were shown.

Amendment proposed— In page 3, line 8, to leave out the words 'Sub-section (1) (a) of.'"—(Mr. H. S. Foster.)

Question proposed, "That the words proposed to be left out stand part of the Bill."

SIR ROBERT FINLAY

said that the permission of the Law Officers of the Crown was only necessary where there was danger of special abuse of the power of prosecution. There was nothing difficult in regard to prosecutions under Subsections (b), (c), and (d); but in case of Subsection (a), where consent was required, it was eminently necessary that there should be some check on the institution of proceedings. It was very difficult to obtain information as to who was a money- lender, and very vexatious proceedings might be instituted from improper motives against a person on the suggestion that he was a money-lender, when in point of fact he really did not come within the terms and spirit of the Act; and it was thought necessary to restrict the power in that case.

Other Amendments made.

MR. H. S. FOSTER

said the object of the Amendment he now moved was to secure that a Return should be made to the House, as there seemed to be some doubt whether without the Amendment the ordinary practice would not prevail. It appeared to him to be the proper thing that a Return should be laid on the Table, of the House, and that the House should exercise some control over the action of the Commissioners.

Amendment proposed— In page 3, line 19, after the word 'therefor,' to insert the words 'and such regulations-shall be laid on the Table of both Houses of Parliament.'"—(Mr. M. S. Foster.)

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

SIR ROBERT FINLAY

said he hoped the House would not accept the Amendment. The Return to which this clause applied only proposed to regulate details, with reference to registration.

Question put, and negatived.

MR. H. S. FOSTER

said the next Amendment which he desired to move was one of substance and importance. The clause created fresh offences, in the wording of it, even if the words "or promise" were omitted, and appeared to him to lend itself to very serious abuse. If a man made a misleading promise or a deceptive statement that would be clearly an offence, and it was quite right that it should be punished, or if a man concealed material facts it was right he should be punished, also, but the words in the clause were, in his opinion, very dangerous and should be properly defined. The clause opened the door to very great abuse, and he hoped the Government would accept the Amendment. There was always danger in indefinite words of that kind.

Amendment proposed— In page 3, line 28, to leave out the words 'or promise.'"—(Mr. H. S. Foster.)

Question proposed, "That the words 'or promise' stand part of the Bill."

SIR ROBERT FINLAY

said that his hon. friend would observe that the words were governed by the following words, "fraudulently induces or attempts to induce." A mere promise did not constitute a crime. He was encouraged to retain the words by the fact that the hon. Member himself had included them in a subsequent Amendment of his own.

MR. MAURICE HEALY

said that in Ireland a prisoner could not be examined in his own defence. It appeared to him that in such cases as would arise under this Bill the defendant should be examined in his own defence, otherwise the lender would be at the mercy of the borrower.

SIR ROBERT FINLAY

said that by permission of the House he might say the matter mentioned by the hon. Member was one of very great weight. He did not know whether there would be any objection on the part of hon. Gentlemen from Ireland to the insertion of words enabling a defendant in such cases to give evidence on his own behalf.

MR. MOSS (Denbighshire, E.)

said that everyone knew that in ninety-nine cases of money-lending out of every hundred the whole transaction was induced by promises, and the section seemed to him to be for the purpose of protecting borrowers from fraudulent promises.

MR. H. S. FOSTER

said the object of his next Amendment was to apply the same consequences to fraudulent borrowers that were applied to fraudulent money-lenders. The Attorney General had stated that he had included the words "or promise" in the Amendment, but he did so because if he omitted them the right hon. Gentleman would state that he was not applying the same law to the borrower as to the money-lender. He therefore followed the wording of the clause, but if the words "or promise" had been omitted in the clause lie would have omitted thorn from the Amendment. The sympathy of the House was being directed by the Government entirely in the direction of borrowers, but in fairness it should be said that there were a large number of fraudulent borrowers, and if the money-lender had frequently to exact what for a bank would be a very heavy rate of interest, it was because ho reckoned on a large percentage of loss from fraudulent borrowers. It seemed to him that the same law ought to be applied to the fraudulent borrower as to the fraudulent money-lender.

Amendment proposed— In page 3, line 31, after the word 'borrowed,' to insert the words 'or if any person by any false, misleading, or deceptive statement, representation, or promise, or by any dishonest concealment of facts induces, or attempts to induce, any money-lender, or any manager, agent, or clerk of the money-lender, to lend money to him or to any other person.'"—(Mr. H. S. Foster.)

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

SIR ROBERT FINLAY

hoped the House would not accept the Amendment. The Bill was introduced not for the purpose of casting any aspersions on money lenders generally, many of whom were most respectable men, but for the purpose of checking abuses which undoubtedly existed in connection with that business, and the need of a measure in the interests of borrowers as against money-lenders was one which had forced itself on the moral sense of the community. He would also call attention to the fact that this Amendment might be used by an unscrupulous moneylender with crushing effect.

MR. MOSS

hoped that the hon. Member would press his Amendment to a division. He did not see why the moneylender, who was conducting a bona fide business which served a very useful purpose, should be placed at a great disad- vantage compared with the money-borrower. If the lender was induced by fraud to lend money, the borrower should be placed under the same penalty as the money-lender who induced by fraud the borrower to borrow money. He did not see that the observations of the Attorney General were at all logical in connection with this clause.

MR. BECKETT

said that there was a recent case in which a borrower went to a money-lender and borrowed money, telling him that he only owed £300, whereas shortly after it came out that he owed £6,000. He was prosecuted for obtaining money on false pretences and acquitted, whereupon the borrower proceeded against the money-lender for false prosecution, and obtained a verdict for a considerable sum as damages. If they looked at the bankruptcy Returns it would be seen that borrowers were not spoken of in high terms. When people were foolish and dishonest enough to borrow from usurers they were utterly regardless of how they obtained loans, even by false representations.

Question put, and negatived.

MR. BECKETT

said the object of the Amendment he now proposed was to give some protection to the lender. Unless some such precaution as was pointed out in the Amendment were taken, the money-lender would be placed entirely in the power of the borrower, and would also be liable to be blackmailed by a dishonest clerk.

Amendment proposed— In page 3, line 34, alter the word 'both,' to insert the words, 'Provided that a court shall not convict under this section unless the statement, representation, promise, or concealment be contained in some written document, or he proved by evidence other than that of the borrower, intending borrower, or sureties (if any).'"—(Mr. Beckett.)

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

SIR ROBERT FINLAY

hoped the House would not adopt this Amendment. It would introduce a hard-and-fast arbitrary rule of evidence that would not do justice. There might be no writing at all in the case; and if there were two or three persons of unimpeachable integrity to testify, surely that would be evidence.

Question put, and negatived.

MR. H. S. FOSTER moved to leave out Clause 5. The clause seemed to him to be exceedingly objectionable in form, because it went against the ordinary maxim of the law that a man was innocent until he was found guilty. The clause proceeded on the assumption that the man was guilty until he was proved to be innocent. If the clause passed, the money-lender would have to prove that he had reasonable grounds for believing that the person with whom he was dealing was of age; but that might be an exceedingly difficult thing to do. Everyone would sympathise with the object of this particular clause, which was to prevent the communication of offers of money to minors, who were particularly liable to temptation, and university students. Any right-minded person must have sympathy with any fair provision having that object; but that ought not to induce them to agree to a clause of this kind.

Amendment proposed— To leave out Clause 5."—(Mr. H. S. Foster.)

Question proposed, "That the words proposed to be left out stand part of the Bill."

SIR ROBERT FINLAY

hoped the House would allow the clause to stand as it was. No doubt in particular cases it might be impossible to give actual proof that the person sending out the circular believed the youth was of age; but whether the youth was of age or not, the circular was intended to lead to the belief that he had proof of the fact that he was of age.

Other Amendments made.