§ Lord Wynford moved, that the Order of the Day for the Third Reading of this Bill be discharged, and that the Third Reading be taken on Tuesday next.
said, that he had examined the Bill since it was last before the House, and he still considered the clause which he then objected to, to be harsh and oppressive. He thought it would be a severe enactment to bring under the operation of the Bankrupt-laws, a man who went abroad for his amusement, or in consequence of some temporary embarrassment, and who had no intention of defrauding his creditors. He imagined that, though the reference to a tribunal to decide on the fact of his absence was apparently fair, yet in reality it was no protection to him. The Bill provided that, after notice being given in the London Gazette, and at his last place of residence, unless he returned and compounded with his creditors within three months, his person and property became subject to the Bankrupt-laws. As to the notice in the Gazette, it, was not likely ever to reach the debtor, for men did not go abroad to read the London Gazette; and as to a notice at his last, place of residence, the probability in 131 most cases was, that the person who left the country had no house in it, and it was probable that the last thing he would do on going abroad would be, to dispose of his dwelling-place here. Notice of this nature to him was, therefore, a most doubtful proceeding, and where such a doubt existed, it was a hard enactment to sentence a man's person and property to the operation of the Bankrupt-laws, particularly when it was considered, that if he did not surrender within a certain time, he could be punished criminally, and became liable, as a felon, to transportation. It was evidently a harsh proposition, to declare a private gentleman, who never traded, to be a bankrupt if he did not compound with his creditors within three months. If their Lordships were determined to carry the spirit of the clause, he thought that, at least, it ought to be modified so far as that the proceedings in bankruptcy should be suspended during his absence. The whole principle of the law, hitherto, was against these cases of constructive bankruptcy; and the man who, as in Ireland, lent money on the estate of another, and secured the priority of his claim by a priority of judgment, would, by this Bill, have his right destroyed. The judgment creditor, if the law was in England the same as the law in Ireland, would, if this Bill passed, have no priority. He merely threw out these hints to the noble and learned Lord, and he reserved himself for a fuller investigation till the third reading of the Bill.
§ The Earl of Eldon
intimated, that at present his feelings were against the principle of the Bill, though he admitted some legislation was necessary, to correct the abuses which it was intended to remedy. The Bill was of immense consequence, and should be well considered by their Lordships before it passed into a law. The Court of Chancery was in the habit of protecting young men of estate from constructive bankruptcy, though the attempt was often made, to bring them within the operation of that law, in consequence of transactions in horses or carriages. This Bill was founded on a principle directly opposed to that which had hitherto guided the Courts of Equity, and it required no slight degree of circumspection on behalf of the Legislature before it passed such a law. Before he sat down, he begged leave to give notice, that he intended to move for a copy of the record in the case of the King v. O'Con- 132 nell. He did not attach blame to any one, but he was anxious to ascertain, in a regular way, the reasons why sentence was not pronounced, and to take some steps towards remedying the state of the law, if it were from any defect in the Statute, that the proceedings were terminated so abruptly. In bringing forward this question, he disclaimed all feeling with regard to that particular case, and he inquired into it only for the purpose of ascertaining the state of the law.
said, that the insufficiency of the law to punish after the expiration of the Act against which the offence had been committed, and for the breach of which the party was tried, was so sensibly felt, that in many cases a clause was introduced, enabling the Courts to award punishment, notwithstanding the expiration of the Act. No such clause had been inserted in the Act for the infraction of which Mr. O'Connell was prosecuted, and the absence of it was one of the reasons which influenced the Law Officers of the Crown in giving their opinion that the sentence could not be enforced.
The Earl of Eldon was far from saying that any body had acted wrong; he only sought to have the question settled for the future.
§ Lord Wynford
said, that if the Bill was deficient in preventing judgment—creditors from being confounded with simple contract creditors, who ought to be distinguished, it was necessary that some further provision should be introduced into it, and he would be happy to attend to any suggestion of the noble and learned Lord on that or any other point.
§ Third Reading postponed.