§ Order of the Day for the Second Reading read.
§ Moved, That the Bill be now read 2a.— (The Lord Chancellor.)
said, he was glad that in this country we had to discuss only the question of the County Courts, at a time when, in almost every other part of the world, affairs were in so unsatisfactory, not to say deplorable, a state. In the New World, a portentous indifference to human life and public credit; in the Old a frightful triumph of cruelty, fraud, and pillage, by the strong against the weak—a triumph at once inglorious and disgraceful. In regard to the measure before them, it could not be overlooked that there was an almost unanimous opinion on the part of the County Court Judges against the Bill. Of sixty of these Judges who had considered and given their opinions upon it, not less than fifty-eight were clearly and decidedly opposed to it, or at least to one of the most important parts—that with reference to imprisonment for debt. There was, it seemed to him, some misapprehension as to the proportion of judgment summonses. In the course of the year, 900,000 plaints were brought in the County Courts, of which, not above 9,000 ended in judgment summonses, or, in other words, not 1 per cent of the whole number. Moreover, of these judgment summonses—which were not committals, but possibilities of com- 567 mittals—a very small proportion resulted in actual committals. This was a smaller proportion than in the superior courts— the Queen's Bench, the Common Pleas, and the Exchequer—where the proportion of writs of fi. fa. to actions brought was 8 per cent. There were some provisions of the Bill of which he highly approved — for instance, those clauses which gave to these Courts an equitable jurisdiction. He had himself endeavoured to procure an extension of equitable jurisdiction to the County Courts, bu thad not succeeded, for neither of his Bills on that subject in 1851 and 1852 had been passed. He trusted, however, that his noble and learned Friend on the Woolsack might be more successful in that respect. He thought, however, that if the Legislature should give their sanction to the proposition it would be necessary to increase the number of Judges, as the present staff would scarcely be able to overtake the additional labour. Another proposition of the Bill was that with respect to the limitation of actions. No doubt the present period was too long; but he thought that it would be inexpedient to restrict the period within which a small debt was recoverable to one year, and that two years would be a preferable limit. He thought it desirable that there should be some provision imposing some check in regard to summonses, which ought not to be issued as a matter of course; but that was a detail which could be considered afterwards. The optional clause of the existing Act as to bringing suits for sums above £50 in the County Courts had proved ineffective. He thought a better plan would be to give the power to bring the suit, and to leave it to the other party to object to its being tried in the lower Court. On the whole, he approved of the Bill, except the provision as to commitment for debt, and hoped his noble and learned Friend would be able to pass it.
§ LORD ST. LEONARDS
said, that he could not support the Bill as it now stood. The Bill proposed to reduce the time under which small debts should be recoverable to one year. The matter was of very great social importance though it lay in a very small compass. By the law as it now stood if a man contracted a debt by simple contract, or acknowledged an existing debt and promised to pay it, or paid a sum on account of it, he could be sued for it any time within six years. But by the Bill of the noble and learned Lord this period as 568 regarded debts under £20, would be limited to one year. He could see no reason for so great a reduction. He thought the very shortest limitation should be three years. This was a question of very great importance to the working classes, for credit was their capital. Speaking generally the classes of persons sued in the county courts were manufacturing and agricultural labourers; and if they took away credit they practically took away the only capital these poor men had. Most of them had scarcely any money, and lived in lodgings; and the furniture they had was so small that the bailiff who was sent to execute the summons did not think it worth while to take the chattels, as he knew there would be no return beyond the expense of the execution. More injury would be done in carrying out such an execution than if the person were to be taken. Suppose the goods of a labourer were worth £10; they would not in a forced sale bring more than 10s., and the poor labourer without furniture would find it hard to recover his position. Let their Lordships consider the case of the ordinary agricultural labourer. He might earn in summer 12s. or 14s. a week, and so long as he could earn his wages he got along very well. But in the severe winter the farmer declined his labourer's services. What was he then to do? As he had no money, and this Bill would destroy his chance of obtaining credit with the small shopkeeper, he must go to the work house. At present he went to the grocer or the baker with whom he had dealt in summer, and whom he had paid when in receipt of wages; and the grocer or baker, knowing that if he did not give him credit in winter, he could not have his custom in summer, supplied him with goods. But by this Bill he could not give this credit with safety. The existing law worked well both for the shopkeeper and the labourer, and he trusted their Lordships would do nothing to destroy the credit given to the working man. Again, the sympathies of their Lordships ought not to be solely with the debtor; the creditor, the small shopkeeper with a small capital, was entitled to a share of them. The small shopkeeper ought to have the power of enforcing his demands. The amount of debts represented by the 900,000 plaints which were issued out of these Courts represented a large sum of money. At present the County Court Judge, after ascertaining that the debtor might pay his debt by instalments, made an order directing 569 him to do so, and if the debtor then made a default in the payment of the instalments a judgment summons issued, and the debtor might be committed to prison. Imprisonment sometimes took place more than once for the same debt, and he was: of opinion that in this respect the law might well be corrected; but the noble and learned Lord on the Woolsack desired to do away entirely with the power of imprisonment, except for fraud, false pretences, and acts of that description; and the imprisonment for such offences the noble and learned Lord extended to two months, in lieu of the forty days, which; the law at present allowed as the maximum term. As the law at present stood, if a man had means to pay a debt and would not pay it he might be sent to prison; but the Bill before the House proposed to take away the power of sending to prison altogether except in cases of fraud. And then there was this extraordinary provision in the Bill, that a judgment debtor might be punished if he wilfully wasted his income or earnings by unjustifiable extravagance or conduct. So that the creditor would have to prove that the judgment debtor had wilfully wasted his income in that way, and, therefore, he would have to follow the debtor about in order to find out how he spent his time. But, supposing the debtor was not guilty of this wasteful extravagance, then he could not be compelled to pay. He might have the means, he might have the money in his pocket, and yet refuse to pay, and in that case he could not be sent to prison. There was one portion of this Bill which, when it became known, would certainly excite general opposition, and that was that as soon as there was a judgment the Judge should have power to make an order, directed to the employer, commanding him to appropriate a certain portion of the wages of the debtor, and to pay them to the bailiff towards the liquidation of the debt. But was such a provision to be carried into effect? Suppose that there were a million of suits in the Courts throughout England, and that in a large proportion of them orders of this kind were made upon employers— how could they give effect to those orders? At a public meeting a manufacturer had recently stated that he employed 2,500 persons. Let their Lordships imagine a manufacturer of this magnitude whose workpeople were remiss in paying their debts. He would be constantly served with notices to appropriate portions of his 570 workmen's wages towards the payment of their debts—how would he be able to carry on his business? The noble and learned Lord would find it impossible to carry the clause into effect. But let this clause be struck out, and there would be no provision in the Bill for compelling a labouring man to pay his debts. He might be punished for fraud, but that was the case under the present law. A person of no means was not committed under the law as it now stood, but if he had means he was compelled to pay, and if he had no goods that could be come at he had to answer in his person. A man might have incurred a debt very lightly and very willingly; well, then, let him pay like an honest man, as willingly as he bad incurred the debt. This Bill was one which would have as wide an operation as it was possible to conceive, and, if passed into law, it might fairly be called a Bill for stopping the credit of the labouring classes. The Bill had been called one in favour of the labouring classes, but as it stood it would exonerate not only the labouring classes, but everybody else from the payment of debts under £20 after the lapse of a year; and this without any of those safeguards which should appertain to a statute of limitations. Referring to the Return made by the County Court Judges, it would appear that the Bill dealt with public-house debts, but not with some other kinds of debts which those Judges referred to. They said that there was an extensive system of selling goods, chiefly wearing apparel, by travelling packmen, upon the terms of paying 1s. 6d. or some other small sum a month; and that these sales were almost always made without the knowledge of the husband. Such creditors obtained judgments in large numbers; and in the great majority of cases no defendant appeared, so that the Judge was obliged to make orders of commitment. The Judges also drew attention to a system of sales by auction in some counties in Wales, the intending purchasers being largely supplied with beer, and third parties being sureties for payment. These cases produced many judgment summonses; and, indeed, the County Courts were used to collect the debts of such persons. He desired also to say that in his opinion it would be most objectionable to transfer to the County Courts the powers of the Courts of Equity, and, indeed, that a greater curse could not be inflicted upon the country. When a man possessed of 571 small property died, the course was now for the parties interested to come to some arrangement and dispose of their claims amicably; hut if this Bill passed, each such case would give rise to an equitable suit in the County Court, and the whole country would soon be overrun with litigation. Beyond this power of appeal was given from these new Equity Courts to the original Court of Equity. For the reasons which he had stated he thought that there were many objections to the measure which was then before their Lordships.
§ LORD CHELMSFORD
said, that the noble and learned Lord in introducing the Bill, had stated very fairly that the subject was of great interest and importance to the people, relating, as it did, to the law of debtor and creditor, and its administration as it affected the humbler classes of society. He was most anxious that the question involved in the Bill should not he regarded simply as one of a legal character. It was a social question of the highest importance, and one which involved not only the welfare of the labouring classes, hut their independence of character and integrity, and uprightness of dealing. It was a question, moreover, which appeared to him to require the most cautious deliberation, for it was one round which it was very easy to raise a mist of prejudice, through which things would he viewed in a false light. His noble and learned Friend on the Woolsack must forgive him for saying that in the able speech with which he introduced the Bill he permitted their Lordships to see only one side of the case. It would be his humble task to endeavour to call attention to other considerations which were necessary to do complete justice to the subject. The Bill of his noble and learned Friend might be divided into two general heads. First, the mode of enforcing payment of debts in County. Courts; and second, conferring upon those Courts an equitable jurisdiction. As to the latter object, he had no objection to it in principle, and, therefore, he should confine all he had to say at present to the former—and certainly the most important portion of the Bill. The principal feature of this portion might be described to he a proposal to take away from the Judges of County Courts the power they now possessed of imprisoning for a limited time persons of ability to pay the amount imposed by judgment of the Court, and who neglected or refused to do so. It was important that their Lordships should bear in mind the 572 circumstances under which this power originated. Prior to 1844 there were numerous Courts of Request for the recovery of small debts, which all possessed the power of enforcing their judgment by imprisonment. In 1844 the Legislature thought it expedient to abolish arrest upon final process for debts under the amount of £20. But the mischievous consequences of this enactment both to debtor and creditor were soon discovered, and the very next year the 8 & 9 Vict. c. 127 was passed, giving to the Small Debts Courts the power of imprisonment, which has since been exercised by the County Courts. In 1846 County Courts were established, and from that time to the present the power of commitment which it was now proposed to interfere with had been exercised by them. In 1853 a Royal Commission was appointed to inquire into the working of these Courts; in their Report made in 1855, they recommended certain alterations, but carefully abstained from suggesting the removal of this power from the Judges. In consequence of a Return to the House of Commons of the number of persons imprisoned by the County Courts, the Treasury issued a circular in 1858 to the Judges of these Courts on the subject, and, as far as he remembered, they uniformly expressed their opinion as to the desirability of retaining the power of commitment. By an Act passed in 1859, the power of commitment was placed on the footing on which it now stands. The Legislature took away from the Judges the power of committing where defendants did not appear, except in cases of fraud, or where it appeared to the satisfaction of the Judge that the defendant had had, since the judgment, sufficient means to pay the instalments ordered by the Court, and had refused or neglected to pay them. He would call their attention to what had been said by one of the Judges—A great fact in reference to this question of imprisonment has been sadly overlooked by persons generally. No man is, or ought, at all events in accordance with the law, to be imprisoned simply because he has money and does not comply with the order of the Court, but because the Judge is satisfied by evidence that he is able to comply with the order and obstinately refuses so to do.In the month of March last a circular was sent to the County Court Judges by his noble and learned Friend, evidently with a view to this measure, asking their opinion as to the abolition or modification of the power of imprisonment. The result of that letter was, that the opinion of fifty-seven 573 out of sixty was in favour of the retention of the power. He regarded that Return as being important, because it contained the opinions of men who, from their position, were brought into continual contact with the class of debtor and creditor, whose interests were affected by the Bill, and who had the largest experience on the subject. It did not appear to have been the intention of his noble and learned Friend to place the answers of the Judges to his circular upon the table, and they had only been obtained by the Motion of his noble and learned Friend (Lord Cranworth). These were the circumstances under which his noble and learned Friend introduced the present Bill. He could not help admiring the address with which his noble and learned Friend enlisted their Lordships' sympathies in favour of the Bill, by describing the misery to which the unhappy debtor was exposed under the system of imprisonment for debt now in practice. It was absolutely necessary, however, to put their Lordships upon their guard by describing the difference between the commitment by the County Court Judges and the old law of imprisonment for debt. The two things were perfectly-distinct. By the old law, imprisonment for debt was the act of the creditor as a satisfaction for his debt, the power proposed to be affected by the Bill was the act of the Judge in consequence of disobedience to his order. Under the old law, imprisonment for debt was enforced whether the debtor had the means of paying or not; but in the County Court the power of commitment was only exercised where the debtor had the ability to pay, and refused to do so. The term of imprisonment, too, under the old law was indefinite, while the maximum term of commitment by the County Court was forty, and did not generally exceed seven or ten days. He did not know why his noble and learned Friend should have taken the Returns of the commitments for two years, unless it were for the purpose of having a greater range of figures, and so to produce a greater impression. He was certain that that statement had given rise to much misapprehension. His noble and learned Friend stated that in the two years ending December, 1863, no less than 17,797 persons were committed, and that the number of days' imprisonment to which they were sentenced was 309,777, and the number of days actually spent in prison was 253,860. He then assumed that on the average these persons earned 3s. a day each, and then 574 multiplied the number of days spent in prison by that sum, and thus arrived at a sum of £43,434 as the value of the labour which was lost to the country to obtain the payment of £62,480. But there was a great fallacy in assuming that the persons committed were all in full work. As far as he (Lord Chelmsford) could make out, it very rarely happened that a man in full work was committed. The fact was that the debtor class was as easily recognizable as the criminal class, and it was not the honest hard working labouring man who was committed to prison, but the profligate idle man who worked only three days in the week and drank for the remainder. Nor was it fair to look at the absolute number of persons committed without noticing also the number of plaints out of which those committals arose. According to his noble and learned Friend's statement, the number of commitments was about 9,000 per annum. But the number of plaints issued annually was upwards of 900,000, representing a sum of more than £2,000,000. Of these, more than half were settled before judgment; and there remained 400,000 judgments issued, representing a sum of about a million for debts and £40,000 for costs. In one-third of the cases in which commitments were ordered the debt was paid before the debtor was actually sent to prison, and therefore the 9,000 ought to be reduced to 6,000 as the number of persons actually sent to prison, which, upon 400,000 judgments, amounted to only 1½ per cent. The argument derived from the loss of labour to the public would apply equally to summary convictions, of which there were upwards of 113,000, find to imprisonments for assault, of which there were as many as 40,000 annually. With reference to the smallness of the proportion borne by the commitments to the plaints, the Judge of the Preston Court stated that in the Leeds district during six months ending April 30, 1862, out of 6,500 cases only 63 individuals were imprisoned, although 625 commitment summonses were taken out—nine-tenths of the debtors under the pressure of a commitment summons thus settling with their creditors. This was the benefit derived from the power of imprisonment; It was the imprisonment of one individual in a hundred which forced the majority of the remaining 99 to settle with their creditors. His noble and learned Friend referred to instances in which persons had been 575 imprisoned for non-payment of very small sums, such as 3s., 2s., and, in one instance, 9d. But, in order that their Lordships might judge fairly of these cases, he ought to have informed them of the circumstances under which these commitments took place. They must bear in mind that the County Court Judges had the power of commitment only in cases where they were satisfied that the debtor had the ability to pay but refused to do so. He (Lord Chelmsford) had been made acquainted with two cases in which commitments might have been ordered for only 3d., but in which he was sure that every one of their Lordships would have approved the committal of the debtors. The first was the case of an attorney who was constantly in the habit of paying the clerk in the Registrar's office 6d. or 3d. short, and who was summoned for the latter amount. The other was a more remarkable case. An attorney's clerk who was summoned for the price of a bottle of whisky admitted that he had purchased and drank it, adding that it was very good, but set up as a defence the Tippling Act, passed in the reign of Geo. II. The Judge, pretending to have heard of this Act for the first time, looked at it very carefully, and then said, "I cannot order you to pay for the whisky, hut, of course, you returned the bottle?" "No," said the defendant, "I did not." "Well, then," said the Judge, "I find nothing in the Act with regard to bottles, and therefore I shall award 3d. for the bottle, 7s. 6d. for the costs of the poor man whom you have compelled to attend here to-day, and 2s. 6d. for his witness." The attorney's clerk did not resist payment of the sums ordered, but if he had he was sure that not one of their Lordships would deny that he ought to have been sent to prison even for so small a sum as 3d. The fact was the smaller the sum the more reason there was for assuming that the debtor must have the means of paying it, and that therefore his imprisonment was due to his own obstinacy, and not to the oppressive character of the system. The noble and learned Lord (the Lord Chancellor) then went on to refer to instances in which there had been repeated commitments to prison for the same debt, and he said that a person might be committed fifty times for the same cause. Without dwelling upon the words "for the same cause," he ventured to ask his noble and learned Friend whether he knew of any instance in which a 576 person had been committed not fifty times but five times for the same debt? In the papers which were before their Lordships, one of the Judges stated that out of 316 commitments in six months, only three were commitments for a second time; and another said that of 4,425 in six months, only about 300 were second commitments. Therefore, although it might be right that some modification should be introduced into the power of repeated imprisonment, they ought to be careful not to do anything even with regard to it which might create prejudice or excite any feeling upon a matter which required the most cautious and deliberate treatment. He did not think his noble and learned Friend had done justice to the County Court Judges. He would call their Lordships' attention to the mode in which his noble and learned Friend had availed himself of the opinions of some of those Judges, who would be astonished to find themselves enlisted in support of this measure. The noble and learned Lord quoted the opinion of Chief Justice Montague in 1551, and of Chief Justice Hyde in 1630, who in almost identical words declared that if a debtor had no goods he must live upon charity, and if no one would relieve him, let him die in in the name of God. The noble and learned Lord referred to these statements to illustrate his declaration that Judges almost invariably looked upon these matters from a creditor's point of view. In the Return of Mr. Falconer those statements were to be found; but that gentleman did not quote them to prove the tendency of Judges to regard questions of imprisonment from a creditor's point of view, but to show how the efforts of the Legislature in modern times to prevent commitments were a strong contrast to the practice of ancient times. He therefore referred to these passages for a totally different purpose to that for which they were employed by the noble and learned Lord. The care and diligence shown by the County Court Judges had been admitted by the noble and learned Lord, but he imputed to them a partiality for retaining the powers of commitment conferred upon them by the existing law. That was hardly just towards the County Court Judges, whose answers showed that they were not at all enamoured of the powers which they now possessed. The Judges at Liverpool said that no part of their duty was so irksome, or caused them greater anxiety, than the dealing with judgment summonses. An- 577 other Judge said he would be delighted if he could be relieved of the disagreeable duty now imposed upon him; while others thought the abolition of the power of commitment would be a gain to the Judges, although it might not be beneficial to either creditors or debtors. The noble and learned Lord said that his object in introducing this Bill was to put an end to the present mischievous and dangerous facilities for obtaining credit by the labouring classes; and, in illustration of the evils of the present system, he read two passages from the answers of County Court Judges relating to tallymen and Scotch pedlars. After reading those passages the noble and learned Lord said that that was the nature of the cases which most frequently arise under the present law. He hoped his noble and learned Friend would not give the sanction of his high authority to an opinion that any liability could arise in such cases as those referred to. In one case credit was given to a daughter without the knowledge of her father and mother; and in the other case credit was given to a wife for useless finery without the knowledge of her husband. He ventured to say that any County Court Judge who committed a father or husband under such circumstances would not understand his duty, nor the law he was administering. The noble and learned Lord who had just spoken (Lord St. Leonards) seemed to consider that an alteration of the law was necessary with regard to such cases; but that was not so: and he ventured to state that the present law was sufficient to protect husbands and fathers under such circumstances. The chief force of the Bill, according to the noble arid learned Lord, appeared to be to get rid of tallymen or itinerant drapers, who were supposed to be perpetually travelling about the country forcing their goods on people upon credit; and the noble and learned Lord reminded the House that in all villages there were small shopkeepers who gave credit. It was not, however, quite clear that something was not to be said for the tallymen. He (Lord Chelmsford) believed that in some places the visits of the tallyman were absolutely necessary to enable the wife and children of the labouring man to obtain decent and even necessary clothing; for in some of the retired rural districts wives could not leave their families to go to a distance to purchase apparel. He was also informed that County Court Judges almost 578 invariably refused to make a husband liable for articles ordered by the wife unless they were of absolute necessity, and in the majority of cases the Judges refused to make a man liable unless his signature was to be found in the tallyman's book. The noble and learned Lord proposed to prevent credit being given to the labouring classes by taking away the power of commitment, he therefore admits that if that power did not exist credit would not be given. In other words, this power over him is the only security which he has to offer. If you propose this out of kindness to him, take care that you do not thereby visit him with a greater evil by preventing him from obtaining credit at times when it becomes an absolute necessity. What is he to do in times of sickness and slackness of work, when his family are ill, and a doctor is to be paid, or when death is in his house, and the undertaker is required, and mourning to be provided. What is to be done in cases of occupations where the labourer is not equally employed throughout the year, such as brickmakers who earn large wages in summer, and none in winter. What as to the large classes of labouring men who only received their wages at long intervals. In the case of miners, some receive their wages monthly, others once in two months. Were they not to obtain credit at a time when they had no means of paying ready money for the very necessaries of life? They could not—or at least should not—prevent voluntary credit. If they did so they would pauperize not only debtors but also a large number of creditors, (small shopkeepers), and send them by scores and hundreds to the parish. To show what a narrow view had been taken of this great question, he must observe that every case had been treated as if it were a case of voluntary credit. But there were multitudes of eases where credit was involuntary. The petition he had presented from several societies for the Protection of Trade showed that the effect of the Bill would be to destroy the legitimate business of nearly every retail trader in the kingdom. One of the County Court Judges had furnished him with a description of the business which came before him in three days, and of 100 cases there were on one day twenty-nine, on another thirty-three, and on another thirty-four of involuntary credit. In all these cases if this Bill passed, the creditor would be deprived of the means of enfor- 579 cing his just demands. What was proposed to be substituted? First of all, there was to be the power of execution against goods beyond the value of £4. Then there was the power of arrestment of wages and punishment for fraud. With regard to the arrestment of wages, his noble and learned Friend (Lord St. Leonards) had shown what difficulties would attend the measure. It seemed to he thought that the remedy by execution on the goods would not only be more merciful, but equally efficacious. Now, with regard to the compassionate view of the subject, he ventured to doubt whether it was not an infinitely less evil to a labouring man to suffer imprisonment for a short time than to have an execution put on his goods, which would probably be the ruin of his wife and family. He referred to the opinions given by the County Court Judges, one of whom, at page 41 of the printed papers, said that the remedy by execution against the goods, where the sole remedy given, was the most cruel, as well as the most inefficacious remedy. The goods seized would probably, under a forced sale, realize only a few shillings, while they could not be replaced for as many pounds. There was a very numerous class too who had no goods to seize and who would never pay their debts when sued for, however trifling they might be, unless under the pressure of the power of imprisonment. That pressure taken off, one-half of the judgments obtained in the County Courts would be worthless. The County Court, certainly a very expensive establishment, would then exist merely for the purpose of ascertaining, not of enforcing debts, and the sooner they were done away with the better for the country. With regard to the second section of the Bill—that which limited the time within which actions for sums under £20 could be brought—he admitted it would be desirable that a general measure should be introduced, not altering the law in regard to the Statute of Limitations, further than by abridging the period within which actions might be brought. But he did not see the ground on which a distinction was to he drawn between debts above and those under £20. There was no principle in it, for £20 to persons in the position of their Lordships was a very small sum, while to a labouring man it was a very large one. It surprised him to hear his noble and learned Friend (Lord Cranworth), whose judgment was usually so sound, entertain the visionary 580 idea that debts below a certain amount should be regarded as debts of honour. The limitation of one year would work injustice to creditors and operate harshly upon debtors. It would compel creditors who now forbear where the circumstances of the debtor call for forbearance to enforce payment for fear of losing the debt. If the clause passed, a medical man who now sent in his accounts yearly would be obliged not only to furnish them more frequently, but to press his debtor in the very cases where, from illness and want of employment, pressure would fall most injuriously upon him. While he admitted that it might be desirable to introduce an Amendment limiting the period for recovering small debts, he believed his noble and learned Friend, when he came to consider the point, would find that the limit proposed was inexpedient, and not practical. Another proposal, which was exceedingly plausible, but to which strong objections might likewise be urged, was that for taking away the concurrent jurisdiction of the superior courts in cases under £20. No doubt it was desirable to limit the costs of actions under £20; but in a variety of cases debts of £20 were incurred, not by labourers and mechanics to retail traders and tallymen, but by retail shopkeepers to wholesale merchants and warehousemen. These wholesale houses were, at present, enabled to sue out a writ in one of the superior courts, which was generally effective to produce payment. To take away in such instances the jurisdiction of the superior courts, and to compel the London, Glasgow, or Manchester merchant to send his travellers and books to these County Courts all over the country, would be a very serious hardship, and would, in many cases, amount to a denial of justice. The debtor, moreover, would have a direct inducement to carry the matter into the County Courts, as thereby he would obtain a little longer time, with the ultimate chance of being allowed to pay off the debt by instalments. The effect of passing such a measure would be to put a stop to, or at least to restrict credit to retail dealers under £20, being the amount of the larger proportion of book debts incurred to the wholesale houses, by which the honest and the dishonest would alike suffer. He was aware that he had trespassed at great length on their Lordships, but he scarcely felt that any apology was necessary for doing so, because the subject was one 581 earnestly demanding their most careful consideration, and he was anxious that their attention should be directed to those points which seemed to him material in determining the propriety of the measure. It would be prudent, he thought, to withdraw from the Bill those clauses which proposed to take away from the County Court Judges the power of imprisonment, and to confine its operation to the introduction of equitable jurisdiction, in favour of which there was much to be said. Of course, he could not expect his noble and learned Friend, after taking so much pains with the measure, all at once to adopt that suggestion; but he trusted it would, nevertheless, engage his attention. To the second reading of the Bill he should offer no opposition; hut its future progress required to be watched very narrowly, and the course he should feel it his duty to adopt would be governed by the declarations which the noble and learned Lord might feel it his duty to make.
§ LORD LYVEDEN
said, he desired to present the proposition to their Lordships in its social bearing, the debate up to that i moment having been conducted exclusively by noble and learned Lords. It was his, conviction that to the agricultural districts no greater boon could he offered than the abolition of the pernicious system of credit by which they were at present weighed down; and the noble and learned Lord on the Woolsack, if he relieved them from this great embarrassment, would entitle himself to their lasting gratitude. He therefore rejoiced that this Bill had been introduced, for it would cut at the root of an evil that was so mischievous. The system of large credits, moreover, was opposed to the spirit of modern legislation, which taught the working classes to hoard their earnings and invest their money to meet a time when their wages might be less. The noble and learned Lord who had just sat down (Lord Chelmsford) had talked about bricklayers and other labourers, whose work was principally in the summer, and asked what they were to do if they could not get credit in the winter. Why it was the credit system which was directly responsible for all the frauds practised on the poor, the rotten garments sold for them to wear, and the miserable food palmed off upon them to eat. They felt themselves dependent on the tradesmen, and went on running into debt with them to an amount greater than their circumstances warranted, under the belief that if they gave their creditors cause for 582 offence they could be sent to prison. The present measure, if passed into law, would have the effect of delivering the agricultural districts from what be knew in practice to be one of the most odious tyrannies. In his belief the measure was calculated to prove highly beneficial, not only to the labouring classes, but to the community at large, for whom he thought a long retail credit of no advantage.
§ LORD CRANWORTH
said, he approved the material features of the Bill and especially of those clauses which limited in a great degree the power of imprisonment. In his opinion, there was a great fallacy in supposing there was an indispensable necessity for giving credit, at all events among the non-commercial classes. Credit, no doubt, was important in the mercantile world among those who had transactions abroad, among manufacturers, and among wholesale and even retail dealers; that is, among those who possess and those who employ capital; but what imaginable advantage was there in a system of credit among the poorer classes? The question was asked what the poor man was to do when he was out of employment. But the question really was whether it was desirable to encourage the working man to spend by anticipation wages which he had not yet earned, or to live upon that which he had put by for such an occasion. The former practice had been too much sanctioned by the operation of the County Courts, which, as at present constituted, had created a vicious system of credit among the poorer classes. It might be difficult to wean the labouring classes from the habit of living upon the anticipation of future wages, but legislation ought to be directed to this end. If the sole object of their legislation was to enable small traders to recover debts of £1 or £2, he did not believe that any means could be devised that would be half so effectual as the power of committal to prison. But in a social point of view it was better to go further back and consider whether these debts ought to be recoverable at all. He did not think that the clauses of this Bill were framed with the accuracy and clearness that generally belonged to his noble and learned Friend's measures. There was, however, nothing new in seizing property, because that could he done now. The Bill proposed to divide what a man had among his creditors, within certain limitations, and then to make the debtor as clear from future liability as if he had obtained a certificate in bankruptcy. 583 This was, he thought, the correct principle. It might work hardships at first, before the public got into the more wholesome system he had described; but that was an incident common to all salutary changes. He had not said that small debts ought to be regarded as debts of honour, but that they should be no more recoverable at law than debts of honour. Such a principle, if established, would, he believed, be for the advantage of society. Meanwhile he should give his cordial assent to the second reading of this Bill.
THE LORD CHANCELLOR
said, he must express his regret that the discussion of so important a measure, involving a great social question on which every one of their Lordships was competent to form a most able and useful opinion, could not attract a greater assemblage of their Lordships than he saw around him. He could not but think that if their Lordships were habitually to neglect discussions of so much importance, it would be impossible that their House should retain the high position which it now held in public estimation. This Bill was intended to improve the position of the lower classes. He feared that the preceding legislation of Parliament had been in a great degree the cause of much demoralization, and that the system of credit that had grown up under the County Courts Acts had been a very great social evil. It was with this evil that he desired to induce their Lordships to grapple. He must beg their Lordships to remember that there were two or three positions which the opponents of this measure took for granted, but which he could by no means admit. The first was that it was good and expedient in the interests of the poor man that he should retain the facilities of credit he now enjoyed. But these facilities of credit were a constant temptation to the labouring man to live beyond his means and to make him familiar with the inside of a prison. For what was the consequence? A man who was committed to gaol for debt lost his self-respect, and came out a degraded man in his own estimation. The second proposition that was assumed for granted, was that a creditor had a moral right to imprison a debtor until he had obtained payment of his debt. This he denied in toto. When the creditor came to him to ask for the imprisonment of his debtor he thought he had a right to ask him under what circumstances he had given him credit. Did he know the posi- 584 tion of the debtor—that he was a working man dependent on weekly wages? Did he know anything of his habits of life—that he was suffering under the exigency of sickness or any other calamity? Did he give him credit without inquiry, and merely that he might involve him in his hooks, charging him in many cases 100 per cent for the articles supplied over and above what he need have paid if he had gone with ready money in his hand? It was the creditor who was able to undergo such an examination satisfactorily to whom he should alone be willing to give the power of pursuing the debtor to a prison. Another argument against his Bill was, that a debtor who owed £10 or £20 stood on the same footing as the man who owed £500 or £1,000. But what distinguished the case of a poor debtor from that of a rich debtor under the existing law was, that the future property of the rich debtor was not held liable for the payment of his debts, while the poor debtor was compelled to mortgage the labour of his hands for ever until he had satisfied the debt, and the law called his future earnings "ability to pay." The result was that, under the fear of imprisonment, the poor debtor was frequently obliged, when pressed by one tradesman, to run up a debt with another, in order that he might wipe off the score contracted with the first; and thus he was always under a cloud, and always on the verge of ruin. A County Court Judge wrote as follows:—The poor man or his wife goes to the shop, and asks for a few things, promising to pay when the weekly wages shall have been received. On the Saturday night the money is taken, and the goods are paid for; but then more goods are had; and very soon a back reckoning is left unsatisfied, the man being frequently in full employ, and with no prospect of improving his means. He is thus induced to live beyond them, and he becomes practically insolvent. Then follows the County Court summons, and the order to pay, usually by monthly instalments—say at the rate of 1s. a week. Now, consider his position. He has been accustomed to spend 1s. or 2s. a week above his income; he is now called upon, not unfrequently with an increasing family, to apply a portion of his earnings to discharge the past debt. Some few, no doubt, may extricate themselves, and wisely see the propriety of living in future within their means. Others run into debt at another shop, while the judgment debt is discharged. Others wait till the creditor takes out a judgment summons, and then comes the usual question for the Judge of the County Court, 'Has the defendant brought himself within the penal provisions of the County Court Acts?'Such was the legitimate effect of the 585 measure for the speedy recovery of small debts, with its notoriously oppressive power of imprisonment. He would trouble their Lordships with one more illustration in regard to the case of the tallymen. In the first place, however, he wished to say that he did not mean to be indiscriminate in his remarks. Soon after the introduction of his Bill, a general meeting of dealers was held in London, at which a resolution was unanimously passed in favour of the abolition of imprisonment for debt; and he had no doubt that the main provision of the Bill was similarly approved by large numbers of the same class throughout the country. After speaking of the tallymen, the same County Court Judge from whom he had already quoted proceedcd to say—So much in justice to the men. Of their system of trading, however, I must speak very differently. The enormous number of poor men that it brings before the County Court is its simplest and most evident condemnation. A Return to Parliament of the number of plaints levied by this class of traders would astound the public. I have known an instance where a single hawker has taken out more than fifty summonses from one Court for the same day of hearing, They make the Court their 'debt collector,' thereby saving themselves the trouble of going for the fortnightly or monthly 6d. or 1s. to the poor man's cottage. And then, what has been so often objected to the system, their visit is usually made when the husband or father is absent at his work.It was not the case, as their Lordships hail; been told, that a husband or father was liable to pay only when he had consented; to the order being given. If a dealer left goods in a house, although without the; knowledge of the master, and those goods were used and worn by the wife or; daughter, the man became liable notwithstanding he was no party to the ordering; of them.
§ LORD CHELMSFORD
said, the man; must have seen his wife or daughter using the goods. There were other cases, however, in which the husband or father might have no knowledge whatever of the existence of the goods.
THE LORD CHANCELLOR
wished to confine his remark to the cases mentioned in the Returns of the County Court Judges, A recent number of The Solicitors' Journal gave a long list of cases decided in one day in a County Court, when, although it was proved that in many instances the goods had been left during the absence of the master of the house, and in some even without the consent of the wife, defendant 586 after defendant was ordered to pay the debt with costs. There could be no doubt whatever that the law as it now existed was a source of much mischief, and it was idle to attempt to defend it on the ground that imprisonment was necessary for the recovery of debts. He granted that if these small debts should be encouraged, and if the creditor should have a right under every set of circumstances to put his debtor in prison, then the law should be preserved in its present condition. But he desired to know what right a man who gave credit wantonly and recklessly had to inflict injury upon society by requiring it to furnish him with the means of keeping his debtor in gaol. Under the existing system, not only was the poor debtor demoralized, but his family were pauperized, and heavy burdens were thrown upon the public. Let their Lordships consider these things, and then let them ask themselves whether it was just, moral, or expedient that such a state of things should be permitted to continue any longer. The noble and learned Lord concluded by expressing his desire that all the details of the Bill should be patiently and anxiously investigated in Committee.
§ THE EARL OF DERBY
remarked that the noble and learned Lord had directed his observations mainly to the encouragement given by the existing law to the system of reckless credit. It was, however, under a state of law which previously existed, but which had now been abolished, that reckless credit was accompanied by the power of imprisonment. Imprisonment was at present limited to cases where the creditor was not reckless in giving credit. There were many persons who, although possessed of the means, refused to satisfy the demands of their creditors, and to whom therefore it could not be said to have been recklessly given; and these persons were justly liable to imprisonment. He believed that the power which the County Court Judges had of inflicting that penalty had had a good effect in the vast majority of cases where persons behaved in that manner, not denying their obligation, but declining to pay. He had heard of a man coming before a County Court Judge, not disputing the debt, but setting the law at defiance by a refusal to pay, while all the time he was chinking the money in his pocket. The noble and learned Lord had laid great stress on the hardship to the debtor of requiring him to pay weekly instalments out of scanty earn- 587 ings; but he proposed an attachment for the wages, which operated practically in the same way on the debtor, but was further open to the objection that,- as the employer would certainly refuse to incur the trouble which such an arrangement would impose upon him, and would dismiss the debtor from his service, so that the creditor would, in fact, lose his best chance of payment.
§ LORD WENSLEYDALE
said, that he had not been able to make up his mind that imprisonment could be dispensed with to the extent proposed by the noble and learned Lord. He could not think it desirable to abolish imprisonment in the case of a man who had the means of paying his debts and refused to do so.
§ Motion agreed to.
§ Bill read 2a accordingly, and committed to a Committee of the Whole House on Monday next.
§ House adjourned at nine o'clock, to Thursday next, half past Ten o'clock.