HL Deb 10 June 1861 vol 163 cc825-40

House in Committee (according to Order.)


, who was almost wholly inaudible said, the Bill had been greatly altered, and as he considered greatly deteriorated in the Select Committee; but he should bow to the decision of the Committee, and should not propose the rejection of the alterations that had been made.


My noble and learned Friend the Lord Chancellor, in presenting the result of the labours of the Select Committee stated, that 'great alterations have been made in the Bill, but that he doubted whether they ought to be called Amendments. He also expressed a fear that some of the alterations, if allowed to remain, would prevent the efficient working of the measure. I confess that it appears to me that the Bill has come out of the Select Committee very considerably improved. Of this, my Lords, I am certain, that there was not a single Member of the Committee who did not evince the most sincere and earnest desire to make the Bill as useful as it possibly can be made. "We may have differed with regard to our views, but there was only one object I am certain which animated the minds of every Member of the Committee, which was to render the Bill as complete and satisfactory as possible. Nobody can appreciate the great difficulties which attend the framing of a Bill which would be satisfactory to all parties upon this important subject, but those who have paid very considerable attention to the matter. The commercial community may be said to be divided into two distinct classes, advocating completely opposite opinions with regard to the mode in which the administration of bankrupt's estates should take place. My noble and learned Friend the other evening presented a petition praying that your Lordships would pass the Bill exactly as it came out of the House of Commons. Now, undoubtedly, the petitioners could not have been very well informed with regard to the character of the Bill, because there were very great inaccuracies in it as it came up to your Lordships' House, and there were parts which it was impossible should work. On the other hand, I have this evening presented an important petition, in which the principal merchants of Manchester state that the alterations which have been made in the Bill by the Select Committee have their entire approval, and they pray your Lordships to agree to those Amendments. Tour Lordships have probably read some printed papers which have been circulated by the Mercantile Law Amendment Society, in which they deplore the striking out of the Chief Judge, which they say was the most popular and the most useful feature of the Bill. In the very petition to which I have referred your Lordships will find that the Manchester merchants take a very different view of the matter, and think that the Chief Judge was a useless and unnecessary expense, Now, the difficulty is to reconcile the conflicting views of parties on this important subject. If you were to take your stand upon, one ground, and to view the Bill only in, that direction, you would find powerful o arguments, indeed, in favour of that side,; whereas if you take the opposite ground, and look on the case from that only you would find equally strong arguments in favour of the other view of the question. But on the present occasion I am not calling on your Lordships to decide between the conflicting opinions of the commercial community; I am anxious to call your Lordships' attention to a point in which, as it appears to me, there is a very considerable blot upon the face of the Bill, because it seems to violate one of the first principles of legislation by making the law—the new law which is introduced by the Bill—retrospective in its operation. I tried to persuade the Select Committee to introduce the clause which I am now about to propose to your Lordships. I was defeated by a very slender majority; but I, like my noble and learned Friend, should have bowed to the decision of the Committee if I had not felt that this was a matter of vital importance'; that it was a violation of the universal principle of legislation; that it would create the greatest possible injustice if the Bill were allowed to come into operation as proposed. I will explain the matter to your Lordships as shortly and as plainly as I can. Under this Bill, for the first time, non-traders are made liable to the bankrupt laws. Down to this time no person can be made a bankrupt unless he carries on business in buying and selling. But that distinction is now proposed to be entirely abolished by this Bill, and non-traders are, for the first time, to be made subject to the bankrupt laws. Now, my Lords, there are many persons whose opinions are entitled to the highest respect, who doubt the policy and expediency of this change of the law, and who think that it may be attended with mischievous consequences. When these objections were urged to the proposal on a former occasion my noble and learned Friend the Lord Chancellor met us by reference to the example of Scotland, where he said the distinction of trader and non-trader does not exist, but where all persons, whatever, are subject to the operation of the law. But, my Lords, with very great submission, it appears to me to be a very different thing where persons are born under a particular system of law, and where, of course, they will accommodate their habits and opinions and feelings to that law; and, on the other hand, where for the first time a new law is introduced which unsettles previous habits and ideas, and introduces a different relation between the important classes of debtor and creditor as this Bill does. I have no doubt that the Roman who lived under the law of the "Twelve Tables" thought it an exceedingly good system of law, and if he were a creditor probably even thought the law De debitore in partes secando very humane, which gave him a dividend of the insolvent debtor's body instead of a dividend of his estate; but it would certainly startle your Lord- ships, as it probably startled the Romans to have such a law suddenly introduced into their code. I have no objection myself—none whatever—to this blending of the system of insolvency and bankruptcy. I describe it in that manner, because I think it is a mistake to say that you can abolish the distinction between a trader and a non-trader. You cannot do it. The distinction between the two is so broad—the two classes are so totally different—there are so many circumstances which distinguish one class from the other—that it is a better description of the Bill to say it is one for blending the two systems of bankruptcy and insolvency. Although I quite agree that it is desirable that this distinction between the two classes of debtors should no longer exist, yet I think all of your Lordships will be of opinion that it is necessary, in changing the law in this striking manner, that you should guard in every possible way against any inconvenience and any injustice that may result. It would be quite fair to say to the non-trader, "if you incur debts for the future, they shall be accompanied by such and such consequences;" but it appears to me to be most unjust to say that existing debts and liabilities shall have consequences attaching to them which made no part of the contract into which the parties entered, and were never in their contemplation, and that they should render the debtor liable to punishment for that which was not previously any crime. My noble and learned Friend seems to doubt whether this is the case. If he will allow me to give an instance I will at once satisfy him upon the subject. There is a clause in the Bill by which the Court of Bankruptcy is empowered, if a person has contracted debts without any reasonable expectation of paying them, to commit him to prison for a year, Now, my Lords, I dare say at the present moment there are many young, and, perhaps, some old gentlemen, who have contracted such debts, who certainly are morally guilty of a very serious offence, but are not legally punishable for it as a crime. It is right that they should be punished for this hereafter; but it seems to me to be manifestly Wrong, and contrary to every sound principle, that you should make them liable to punishment for that which was not' an offence when the debt was contracted. This is the evil, the injustice of an ex post facto law, which is the most vicious species of legislation. It is a remarkable thing, and I beg your Lordships' particular attention to this part of my observations, that the Government yielded to this principle, recognized it as the proper one to be introduced into this Bill as it was originally framed; for when the Bill was introduced into the House of Commons it contained a clause of precisely the same description as that which I am now asking your Lordships to adopt. I am not using this as an argumentum ad hominem. I do not say to the Government, "you cannot after that course object to the re-introduction of this clause," but I think I am entitled to say, "We are told that this Bill occupied the care and attention of the Government for several months before its introduction into Parliament; and it appears that after a most careful consideration the Government deliberately and advisedly determined that it was just and proper there should be a clause protecting non-traders against any retrospective liability to punishment or disability. Your Lordships may be curious to know how it happened that this clause no longer formed part of the Bill when it came up to your Lordships' House. The truth is, that there is in the other House, as there is in your Lordships' House, a period of the evening in which the House falls into what one may describe as a syncope, which, as we all know, is attended with a suspension of the action of the brain. In this House the attack generally terminates fatally. But, in the other, after a period longer or shorter of suspended animation, the House is restored to all its powers and its functions, and proceeds in the vital and active discharge of its duties. In this unconscious interval, if I may so call it, not the Government, but an hon. and learned Friend of mine (Mr. Malins), moved, to the surprise of every one, the rejection of this clause. Whether my hon. and learned Friend the Attorney General had partaken of the general insensibility, or whether he had exhausted himself in defending the other clauses, I cannot tell; but so it was, that my hon. and learned Friend said, "Gentlemen, you may do just as you like." A short and languid discussion took place of twenty minutes' duration; the House had not energy enough for a division; the Attorney General threw away his sword, and the clause was surrendered at discretion. Under these circumstances I should have thought that the Government would have been glad to have supported me in the re-introduction of this clause, in restoring the Bill to the state in which it was when it came out of their hands, inasmuch as the clause was not struck out after the usual mature consideration. Had there been a debate in the House of Commons on the subject, followed by a division, and had the clause been then rejected by a large majority, the Government might very well have said, "Our original opinion was that the clause was right; but inasmuch as the House decided differently, we bow to the decision." But such is not the case; and I do sincerely hope that the noble Earl on the other side will consider that I am only assisting in the views of the Government when I seek to restore this clause to the Bill. I need not enter into the subject of the vicious character of all retrospective laws, nor need I show you instances in which homage has been paid to the great principle of making the laws prospective only. You may take up the statute book and go from one end to the other, and you will find there no instance of retrospective legislation, except—and I wish the distinction to be marked—except cases in which relief has been given, but in no case in which persons have been subjected to civil liabilities, much less-to punishment. I will just mention one case in which I think in the strongest possible manner the Legislature showed its objection to retrospective laws. An Act had been passed forbidding printers to advertise foreign lotteries under a penalty of £50, payable to any person who chose to lay an information. A great number of persons printers, in ignorance of the law—which the law, however, says is no excuse—had printed a number of these advertisements, and the consequence was that they were pounced upon by a set of informers, and an immense number of informations for penalties were prosecuted against them. The mischief was felt to be so great that the Legislature thought it right to interfere, inasmuch as the printing of the advertisements had taken place inadvertently; and, therefore, a Bill was brought in by which the parties were relieved from the actions then pending, but they were relieved only on payment of all the costs up to that time. In every case in which a common informer had obtained judgment the Bill did not operate, but his rights were protected by an express provision. This is a striking proof of the great reluctance of the, Legislature to in- troduce any retrospective law; and if I were to search the statute book I do not think I could furnish a stronger illustration of my position. I trust I have now satisfied your Lordships that it is proper to reintroduce the clause providing that the non-trader portion of the Bill should not have a retrospective operation. The noble and learned Lord concluded by moving an Amendment, to insert the following clause:— The Debt of the Petitioning Creditor of any Debtor not being a Trader must be a Debt contracted after the passing of this Act; and the Judgment Debtor Summons must be a Summons in respect of a Debt contracted or a Liability incurred after the passing of this Act.


said, that although he did not join in the warm eulogium pronounced by his noble and learned Friend on the performances of the Select Committee, he did not dispute that they had been actuated by the most laudable motives in what they had done, as well as in what they had undone. But he must repeat his opinion that what they called amendments were in some cases rather alterations, and even deteriorations. His noble and learned Friend comforted himself very much by a petition that he had presented to their Lordships that evening. If the noble and learned Lord had been in the House at an earlier hour he would have seen petitions presented in a different sense. For himself, he could declare most solemnly that he had had representations made to him, not only from the society which had been referred to, but from various other quarters and from mercantile bodies of the greatest importance, lamenting the alterations made in the measure by the Committee, and especially lamenting the rejection of the provisions relating to the Chief Judge. That was, in fact, a most important part of the Bill, which in the House of Commons never met with the slightest opposition, which was universally approved by both sides of the House, and which was hailed with satisfaction by almost all who were connected with the administration of the law of bankruptcy. He did not now call on their Lordships to resist what had been done on that subject by the Select Committee; but he believed that without the Chief Judge the Bill would not work or produce the good effects which were anticipated from it. An unexpected attack had been made on that part of the Bill in the Committee, for no notice was given, either publicly or private- ly, that such an Amendment would be moved; and a noble Friend who sat near him, as well as other members of the Committee, were absent in the discharge of a public duty when the Motion was made. He could take upon himself to say that no answer whatever was given to the arguments which had been adduced to show the indispensable necessity for the appointment of the Chief Judge. It was supposed that his duties would be the same as were now performed by the Lords Justices of Appeal in the Court of Chancery. But that was not so. The Chief Judge in Bankruptcy was to have most important functions. He was to hear appeals from all the County Court Judges, as well as from the District Bankruptcy Judges; and now, when non-traders as well as traders were to be included in the Bill, the business of appeal would be so much accumulated that it would be utterly impossible for the Lords Justices in the Court of Chancery to answer the expectations which had been formed of them. He had no doubt the result would be such that the noble Earl opposite would regret that he had acquiesced in the alteration. For himself, he had no difficulty in expressing his belief, his hope, his expectation, that in "another place" the clause as it originally stood would be restored. He had no Amendment to offer on the subject; but he trusted a remedy would be found elsewhere, and that afterwards their Lordships would agree to that Amendment, so that the Bill might answer the expectations of the country. "With regard to the Amendment moved by his noble and learned Friend (Lord Chelmsford), he must acknowledge that it would be by no means fatal to the Bill. It would only delay its operation in a few cases. His noble and learned Friend had given a description of what had taken place in the House of Commons on Mr. Malins's Motion, which was certainly more humorous than correct. Mr. Malins made a solemn Motion; he gave his reasons at considerable length; there was no division, because there was no difference of opinion. But his noble and learned Friend should have gone on to tell their Lordships what took place afterwards; for when the state of syncope was over, when the House was in full vigour, when its benches were crowded and the intelligence of all was awake, that distinguished ornament of the House, Sir Hugh Cairns, made a Motion, the substance of which was to reverse that vote. There was a debate on it; the subject was canvassed on both sides, the House divided, and there was a majority of twenty-five—a majority beyond its teens—against him. He, therefore, trusted their Lordships would follow the example of the Select Committee, where the subject was debated, when a division took place and it was carried by a majority of two to leave the Bill in that respect as it now stood. He must say he agreed most heartily with what his noble and learned Friend said against retrospective legislation; but he denied that this could fairly be considered a retrospective law. The object was not to punish debtors, but to provide that they should cede their property for division among their creditors. There was nothing in the Bill which would subject a debtor to punishment for anything hitherto done; it was only in respect of what might be done hereafter that an adjudication of bankruptcy could take place. It was the going abroad with the intent to delay creditors—it was the staying abroad with the intent to defraud creditors—it was the making a fraudulent conveyance or transfer of property with the same intent—it was only where these acts were done after the Bill had received the Royal Assent that the debtor committing them could be made a bankrupt. He maintained this was prospective, not retrospective legislation. It was necessary and, he believed, would be salutary. His noble and learned Friend had talked of petitions; there ought certainly to be petitions from Boulogne and Calais in favour of his Amendment; for he believed both would be very much, unpeopled if he did not succeed in it. He trusted their Lordships would agree with the House of Commons and the Select Committee, and negative the Motion of his noble and learned Friend.


said, he should hardly have troubled their Lordships on this subject, but for the pointed reference made to him by the noble and learned Lord. The noble and learned Lord appeared to be exceedingly shocked or distressed at the striking out of the clause with respect to the Chief Judge. For that alteration neither he nor any noble Lord on his side of the House was responsible; but it was introduced on the authority of the noble and learned Lord (Lord Cranworth) who was sitting just behind his noble and learned Friend. The clause was struck out after full and careful discussion, because it was thought that the motives alleged for the appointment of a Chief Judge —namely, that he would promote regularity and uniformity of decision—would not have any real effect, because the original jurisdiction of the Chief Judge would be comparatively very small. The original jurisdiction in bankruptcy would be divided amongst a larger number of persons by this Bill than it was at present, and, therefore, the Committee could not see how a greater uniformity could be obtained than now, the appeals being at present to the Lords Justices instead of to a Chief Judge. Further, the Select Committee thought that the appointment of a Chief Judge was a great and an entirely unnecessary expense, and that it would very largely increase the expenses attending bankruptcy proceedings. If the Bill had not been altered in this, or some similar respects, the public would soon have found that the bankruptcy law would have been much more expensive and complicated under this Bill than it now was. When the clause relating to the Chief Judge was struck out, he could only say there were seventeen Members present, and he believed the only Member who, although ordinarily regular in his attendance, happened not to be in the room at the time was the Lord President of the Council.


And Lord Stanley of Alderley.


Then there were only sixteen Members present; but the subject was fully discussed, and when the Lord Chancellor put the Question, "that this clause stand part of the Bill," there was not a single Peer who raised his voice in favour of it.


I did.


I also said "Content."


was not aware of the fact. He thought there was not a single voice which said "Content," but undoubtedly there was no Member of the Committee who ventured to say "The Contents have it." When the retrospective operation of the Bill was discussed there were eighteen Members present, of whom ten voted against doing away with the retrospective operation, and eight in favour of the Amendment to that effect. The Committee consisted of twenty-one Members. Lord Lyndhurst unfortunately was unable to give his attendance, and the other two Members who happened to be absent on the occasion in question, entertained strong opinions as to the impropriety of the retrospective clause. There- fore, the Committee might be said to have been equally divided, and, consequently, his noble and learned Friend (Lord Chelmsford) thought it right to submit the question to their Lordships. He was glad to hear the Lord Chancellor say that he disapproved retrospective legislation; but the statement of the noble and learned Lord that there was nothing either retrospective or penal in the Bill was one in which he could not concur. If their Lordships would only refer to Clause 82, they would find that— If any person, not being trader, shall, with intent to defeat or delay his creditors, depart this realm, or being out of this realm shall with such intent remain abroad, or shall with such intent make any fraudulent conveyance of his estate, such person shall be deemed to have thereby committed an act of bankruptcy. Therefore, the Bill proposed this penalty should he imposed on any person who had contracted a debt years ago. This, he contended, was undoubtedly retrospective legislation.


Certainly, if he does not conform to the law.


If he does not surrender in a certain time.


If the person did not return to this country he came under the operation of the Act for a past debt. Then what did the noble and learned Lord say with regard to the penal effect of the Bill? Clause 164 said that if the Court should be of opinion that the bankrupt, being a trader, had carried on business by means of fictitious capital; or, with the intent to conceal the true state of his affairs, wilfully omitted to keep proper books; or, whether a trader or not that he had not at the time when any of his debts were contracted any reasonable and probable ground or expectation of being able to pay the same, then he might be sentenced to imprisonment for one year, although the debt was contracted before the passing of this Act. He thought on all these grounds their Lordships would insert the clause proposed by his noble and learned Friend, and for the reason he had stated, the noble and learned Lord Chancellor, being opposed to retrospective legislation, ought to vote for it.


would be the last man to concur in any legislation which was really retrospective; that was to say, by which any existing right was infringed or taken away; but he maintained that the Bill did not contain any such principle—all that the Bill now did was to give a new, an easier, and a cheaper means of enforcing rights which actually existed. The term "retrospective" might as well be applied to every Act for facilitating the recovery of debts which had been passed in modern times. Lord Eldon was no bold Legislator who would have interfered with existing rights, but by his Consolidated Bankruptcy Act many classes of persons were brought within the operation of the bankruptcy laws who were not subject to them before, and yet it never occurred to the mind of Lord Eldon that, because persons by that means might be made criminally responsible, therefore, the Act should apply only prospectively to debts afterwards incurred. The same thing was done by Lord Hardwicke, who brought bankers and brokers for the first time within the operation of the bankruptcy laws. Therefore, on authority as well as on principle, he contended that their Lordships were not interfering with the retrospective rights of any individual. Their Lordships proposed to introduce, under the plea of bankruptcy, something to exclude retrospective legislation with regard to non-traders, and to that proposition he could not agree, and he should, therefore, conscientiously adhere to the principles which actuated him in the Select Committee, and vote for the Amendment.


said, he could state nothing as to what passed in the Committee either on one side or the other because he was not there, and, therefore, could not say how the retrospective clause passed; but it was clear that the clause was carried in Committee by a bare majority. But upon the merits he must say that even if the clause had been carried by a large majority, he should still entertain the most positive opinion that the creation of a Chief Judge, as proposed, would be utterly useless. The Chief Judge, it was proposed, should be equal in dignity to the puisne Judges, and was to have a salary of £5,000 a year; and he would have to do literally nothing. If there were any necessity for superintendence of the proceedings of the Commissioners, why not make one of the Commissioners head of the others, and let him superintend the court? This would be unobjectionable, because the Chief Commissioner would have other duties to perform, whilst the proposed Chief Judge would have no functions but those of superintendence. He had some experience as regarded an appeal within the Court of Bankruptcy, for the Act of 1831 a Court of Review, with a Judge to preside over it, was created, which took the position which the Court of Chancery previously occupied in respect to bankruptcy. At that time a very large portion of the time of the Lord Chancellor was occupied by appeals from bankruptcy—indeed, the sittings in reference to bankruptcy frequently occupied four or five weeks; but after the Court of Review was formed it Was found that the Commissioners performed their functions so satisfactorily that there was nothing for the Court of Review to do, and it was allowed to fall into disuse. He strongly recommended their Lordships to agree to the Amendment now proposed. The precedents mentioned, and with which Lord Eldon and Lord Hardwicke were connected, applied to a totally different state of things. In that case it was sought to bring within the bankrupt law bankers and brokers and others quasi-traders, who by some caprice of legislation had been left without the pale of the bankrupt law; but there was a wide distinction between that and the present Bill by which it was proposed to enter the penalities and consequence of the bankrupt law to persons who had nothing whatever to do with trade. Suppose there were no imprisonment for debt, as was formerly the case—for such imprisonment was the creature of the statute, and did not exist at common law—would it not be thought hard upon passing an Act instituting imprisonment, to make it apply to debts contracted before the statute? He agreed, however, that there were many reasons why there should be a prospective operation to the clause. If the Bill passed in its present shape it was possible for a Member of either House of Parliament to become a bankrupt for a debt at a time when he felt he was perfectly safe in contracting it; and the consequence of bankruptcy in the case of a Member of the House of Commons was that the Member was expelled from that House and lost his seat by Act of Parliament.


was understood to oppose the Amendment.

On Question, Whether the said Clause shall be there inserted? their Lordships divided:—Contents 98; Not-Contents 61: Majority 37.

Motion agreed to; Clause there inserted.

Beaufort, D. Manchester, D.
Cleveland, D. Richmond, D.
Rutland, D. Berners, L.
Boston, L.
Abercorn, M. Brougham and Vaux, L.
Bath, M. [Teller.] Calthorpe, L.
Cholmondeley, M. Castlemaine, L.
Exeter, M. Chelmsford, L.
Normanby, M. Churston, L.
Salisbury, M. Clements, L. (E. Leitrim.)
Amherst, E. Clifton, L. (E. Darnley)
Aylesbury, E.
Bantry, E. Colchester, L.
Beauchamp, E. Colville of Culross, L. [Teller.]
Cardigan, E.
Carnarvon, E.
Cawdor, E. Conyers, L.
Coventry, E. Delamere, L.
Derby, E. Denman, L.
Devon, E. De Ros, L.
Doncaster, E. (D. of Buccleuch & Queensberry). Dinevor, L.
Downes, L.
Egerton, L.
Ellesmere, E. Feversham, L.
Erne, E. Forester, L.
Harrington, E. Grantley, L.
Lanesborough, E. Kenyon, L.
Lonsdale, E. Kingsdown, L.
Malmesbury, E. Leconfield, L.
Mayo, E. Lyveden, L.
Nelson, E. Maryborough, L. (E. Mornington.)
Orkney, E.
Pomfret, E. Northwick, L.
Powis, E. Polwarth, L.
Romney, E. Raglan, L.
Selkirk, E. Redesdale, L.
Shrewsbury, E. Rollo, L.
Stanhope, E. Saltersford, L. (E. Courtown.)
Stradbroke, E.
Strathmore, E. Saltoun, L.
Vane, E. Silchester, L. (E. Longford.)
Verulam, E.
Winton, E. (E. Eglinton) Skelmersdale, L.
Somerhill, L. (M. Clanricarde.)
Canterbury, V.
De Vesci, V. Sondes, L.
Doneraile, V. Southampton, L.
Dungannon, V. St. John of Bletso, L.
Hardinge, V. Strathspey, L. (E. Seafield.)
Hood, V.
Hutchinson, V. (E. Donoughmore.) Templemore, L.
Tenterden, L.
Lifford, V. Teynham, L.
Strathallan, V. Tredegar, L.
Walsingham, L.
Bagot, L. Wynford, L.
Campbell, L. (L. Chancellor.) De Grey, E.
Ducie, E.
Granville, E.
Devonshire, D. Grey, E.
Newcastle, D. Harrowby, E.
Somerset, D. Portsmouth, E.
Saint Germans, E.
Bristol, M. Spencer, E.
Camden, M.
Lansdowne, M. Sydney, V.
Torrington, V.
Airlie, E.
Albemarle, E. Bath and Wells, Bp.
Caithness, E. Carlisle, Bp.
Chichester, E. Down, &c., Bp.
Clarendon, E. Durham, Bp.
Ripon, Bp. Llanover, L.
Methuen, L.
Abercromby, L. Minster, L. (M. Conyngham.)
Ashburton, L.
Boyle, L. (E. Cork and Orrery.) Mont Eagle, L. (M. Sligo.)
Camoys, L. [Teller.] Overstone, L.
Carew, L. Ponsonby, L. (E. Bessborough.)
Chesham, L.
Churchill, L. Rivers, L.
Cranworth, L. Rossie, L. (L. Kinnaird.)
Crewe, L.
Dartrey, L. (L. Cremorne.) Sandys, L.
Saye and Sele, L.
Ebury, L. Stanley of Alderley, L.
Foley, L. [Teller.] Sundridge, L. (D. Argyll.)
Harris, L.
Hatherton, L. Talbot de Malahide, L.
Herbert, L. Taunton, L.
Hunsdon, L. (F. Falkland.) Truro, L.
Wensleydale, L.
Leigh, L. Wodehouse, L.

said, he had given notice of his intention to strike out Clause G., introduced by the Select Committee on the Motion, of the noble Earl opposite (the Earl of Derby), though he did not intend to give their Lordships the trouble of dividing. The noble Earl had put this case in support of his view. Suppose a father, aged 50, and a son, aged 25, the father having a life interest, and the son having also a life interest in remainder after his father, producing an estimate made by an actuary, the noble Earl showed that the value of the son's reversionary life interest would be worth only two years' purchase; and his argument was that it would be very hard to make a bankrupt of such a man, and to sell so small a reversionary interest. Now, he could see no hardship at all in the case supposed. The question was what was the interest worth? and if the person who owned it was indebted and had no other property, why should it not be applied in payment of his debts, as well in the case of a non-trader as of a trader? Though there was probably no intention of this kind on the part of those who framed the clause, it looked as if their object was to protect the upper ranks of the community and those not engaged in trade, while those who were engaged in trade were left without any such protection. The exception was liable to the charge of being something like class legislation without effecting the object in view, for the son's reversionary life interest, might certainly be taken in execution, and sold at the instance of a creditor. He moved that the clause be omitted, but would not divide their Lordships on the point.


said, the clause had been introduced by the Select Committee at the instance of his noble Friend (Lord St. Leonards). The case was this. A man, aged 50, had a son, aged 25, who had an infant son. An estate of £10,000 a year was settled on the son, with remainder to the children. If the son became bankrupt his interest would, under the Bill as it originally stood, be sold, and he (the Earl of Derby) took the opinion of an actuary as to the value of such a life interest under such circumstances. The answer was that such a sale would be very difficult to effect, as few persons would be found to purchase such property. The value, according to the chances of life, would be about two years' purchase. Let their Lordships consider the effect of a sale of the estate under the circumstances referred to. The tenant in possession would take no interest in it knowing that it would go to a stranger; and when that stranger came into possession all he would care about would be to screw as much out of it as possible. What would be the condition of that property when it came into possession of the grandson? Well, then, what the new clause proposed was this, that under such circumstances the sale should not take effect except under the express direction and sanction of the Court.

Amendment negatived; Clause agreed to.

Further Amendments made:

The Report thereof to be received on Thursday next.

House adjourned at a quarter beforeEight o'clock till To-morrow, half-past Ten o'clock.