§ Earl Grey
rose to move the commitment of the Freehold Estates Bill. He stated the object of the Bill to be, to make freehold estates liable to the simple contract debts of their deceased possessor. It seemed to need no other arguments than considerations of common policy and common honesty, to induce the House to make an alteration in the existing law, for the purpose of carrying that object into effect. Cases had occurred of very great hardship from the want of a provision of this kind: 1037 —a person who had incurred simple contract debts to a large amount, and who had actually purchased land with the money, had destroyed himself; and his lands, to the amount of 9000l. a year, had descended to his heirs, while his creditors received only 2s. 6d.in the pound. This case was known to many of their lordships. Trustees, it was also known, who violated their trusts, incurred only a simple contract debt, and the freehold estates of such persons, if they happened to die, would not be liable to its discharge. The present Bill was not an innovation in principle—it merely would put the freehold estates of persons dying, in the same condition, as to simple contract debts, as with reference to specialty debts; in the same condition as the estates of those subject to the bankrupt laws; in fine, in the same condition as the estates of every honest man, who always, by a special provision in his will, put his creditors in that situation in which it was the object of the present Bill to place all creditors. He should not anticipate objections, but should move that the Bill be committed.
§ Lord Redesdale
opposed the Bill, on the ground, that by its operation all the estates in the country would be brought into the Court of Chancery, and subjected to endless litigation—even where the personal estate was ultimately sufficient to meet all the claims of the creditors. Small freeholds would be thus annihilated, and a material feature, in the policy of the country, which consisted in the maintenance of this species of property, and which made the possession of a freehold a qualification for so many offices, must be changed.
The Lord Chancellor
argued, that in the first place no necessity was shown for the present measure, because every man who gave credit to a person of landed property, knew that in case of the decease of that person, he had no claim on that estate. Every man might have any security for his debts which he chose to take. In the next place, as to the expediency of the measure: it had been the policy of the Legislature, from the very infancy of statute law, to hold real property more sacred than personal, and they had always taken care that no interest in it should be transferred without proper consideration and solemnity. The statute merchant and statute staple only applied to persons who consented to carry on their dealings in a manner which rendered 1038 their estates liable to be taken in execution; but even by them the rents only were taken, and when the debt was liquidated, the estate reverted to the owner. By the statute of Elizabeth, one half only of an estate was liable to be taken, and that only in virtue of a judgment entered; and this so far depended on the judgment, and not on the debt, that if the possessor of an estate sold it the moment before a judgment was entered, there was no remedy against him. The whole of the law was in the same policy and it formed too material a feature of the whole constitution to overturn it without necessity which he had shown did not exist; for every one could make a law for his own case, by the precaution of making his debt a specialty. The Bill, too, would be productive of evil, by inducing persons to give credit to those who walked over thousands of acres, which on their death would not, even under the present Bill, be assets for their debts. The Bill also would not affect copyholds, which at present were not liable even to specialty debts. It did not affect estates in tail. These were both inconsistencies. Why did not the Bill enact, that persons possessed of estates in tail, should suffer a recovery for the benefit of their creditors? He said this to prove to what extent of innovation the present Bill would lead. He should therefore oppose the motion.
§ Lord Ellenborough
said, the present notions of innovation would lead to the universal establishment of gavelkind, and the destruction of the present system of tenures. He suppported and enforced the leading arguments of the noble and learned lord on the woolsack; and in conclusion observed, that the adoption of such a measure would be like the putting on, for the sake of a little inconvenience, a huge blistering plaster, which would corrode and gangrene the whole system.
§ Earl Stanhope
said, there were two parts in the Bill, the object, and the means by which that object was to be carried into, execution. The object he did not disapprove of, but the means by which it was to be brought about were unconstitutional and mischievous. The whole execution of the Bill was to be given to the Court of Chancery, a court where all witnesses were examined in private, and never cross-examined, and where one suit lasted as long as a hundred suits at common law. Too much of the business of the country was already thrown into that Court. Every 1039 blunderer in the House of Commons, who knew not what else to do, sent them to the Court of Chancery. He should on this ground oppose the Bill, on account of the means by which it was proposed to execute it, which cast an imputation on the trial by jury.
§ Earl Grey
replied. It appeared to him that the apprehensions of the noble lords of the vast increase of Chancery business from the present Bill, were unfounded. He should appeal to facts. Was it true that all estates which were burthened with specialty debts, that every real estate which the proprietor by will had made liable to his simple contract debts, were thrown into that court? The only principle which the noble lords, with all their learning, had established, was one which, from what he had heard and read, he was more and more inclined to concur in; that the laws were in such a state as to be a grievance almost intolerable to the people of this country. Indeed, what could be a worse state of the laws than one which so teemed with vices, that all the great lawyers in that House professed themselves unable to devise means whereby a just creditor could obtain payment of a debt out of a freehold estate without such expense, that the estate itself would be wasted to nothing, and vexation to the parties not to be endured? If this were the real state of the law, it loudly called for revision. As for his noble friend who spoke last, if he objected to the mode only of executing the purpose of the Bill, the committee was the place to amend the provisions he complained of.
§ The motion was negatived without a division, and the Bill was ordered to be committed that day six months.