insolvent, who were anxious to protect his perty might be distributed among his creinterests at the expense of the just claims ditors. He doubted, indeed, whether the of the creditors. Others had themselves principle had been sufficiently carried out been engaged in transactions with the by the Bill. Take the case of the impunity debtor, and which would not bear ex- of the Members of both Houses in regard posure. Behind these stood the interests to the payment of their debts. If a Memof the solicitors and others. These cir- ber of either House of Parliament were cumstances affected the realization of as possessed of property and would not sets, and interrupted the course of jus- apply it to the payment of his debts, he tice. He believed that for the suppres- did not see why he should not be liable sion of improper practices and the due to a judgment debtor summons, like the collection and distribution of assets the in- rest of Her Majesty's subjects, and why terposition of a public officer, appointed by the whole of his property should not be authority independent of the creditors, was applied to the payment of his debts. If absolutely essential for the due adminis- his noble and learned Friend on the tration of justice. The knowledge that woolsack would not propose a clause to everything connected with the insolvency remove this anomaly and defect in the would come under the inspection of a present state of the law, he would do so. vigilant and impartial officer, would greatly The next main principle of the Bill was, influence the proceedings of all parties, that it united the tribunals of bankruptcy and these advantages would be entirely and insolvency. Upon that point he concompromised if the principle of this Bill curred with the Lord Chancellor in thinking should be adopted. The best course to that the same tribunal ought to administer be pursued would be to refer the Bill to estates both in bankruptcy and insolvency. a Select Committee, and then he should Great difference existed, however, both ask their Lordships to avail themselves of among lawyers and merchants on this the experience of persons in the city be- subject, and objections were felt by the fore they took such a decisive step as that latter to being compelled to go into the proposed by the Bill of the noble and same Court with many of the present class learned Lord. At present the Bill was of insolvents. But this difficulty might be retrograde alike in principle and practice, remedied. In the country all the small so far as it has reference to the manage- cases are, according to the Bill, to go ment of an insolvent's estate. before the County Court Judge, and he LORD CRANWORTH said, that the did not see why an exception should Bill contained many important principles, be made in London. He concurred with some of which had his entire concur those who regarded it as a great anomaly rence, while others met with his decided that a spendthrift, just before his father or opposition. In the first place, the Bill his aunt died, should be entitled to go proceeded on the basis of abolishing im before a Court and say, "Whitewash me, prisonment for debt. It might be said, and then I shall succeed to a large prothat imprisonment for debt was by the pre-perty." The present law was very mild, sent practically abolished, except in the and it was worth consideration whether the case of a debtor suspected of an intention Bill would not work injustice to the credito abscond. In other cases, indeed, ap- tors of those who might be in a short time plication might be made to the Judge in a position to pay their debts. Clause 111. either at or after trial, but these cases was open to strong objections. It and the would scarcely occur once in twenty years. three subsequent clauses gave a son, who He did not say this in opposition to the might be heir to an estate, power to say Bill. As to this case of the abscond- that his interest in the property should ing, it was undoubtedly as to other not be sold until it fell into possession, becases right to retain the power. In all cause it was likely to sell at a great other cases much might be said on loss. This, however, was unjust to the both sides of the question; but on the whole he concurred that in the present state of society it was better to get rid of imprisonment for debt altogether, and the Bill proceeded on the legitimate principle that the debtor should be summoned so that he might be examined as to any property he possessed, and that his pro creditor, to whom it was indifferent what it realized, provided only it produced sufficient to satisfy him. This part of the Bill would, he hoped, receive reconsideration, for it appeared to him to be fraught with unmitigated evils. By the 93rd clause his noble and learned Friend proposed to give an option to creditors, if they so thought fit, to choose assignees, and that thereon the official assignee should cease to be an assignee of that estate. It was, as their Lordships knew, formerly the law of this country that creditors had the choice of assignees to manage their affairs; but a Bill brought in by his noble and learned Friend (Lord Brougham) altered that state of things, and provided for the appointment of official assignees. It was now proposed to go back to the old state of things, on the ground that it would save expense. He believed that it would do no such thing. But if it did, in the case of this or that estate, what would that be in comparison of what his office saved to creditors generally? That was proved most decidedly by the statement that when the Bill providing for official assignees came into operation, it was found that there were between £2,000,000 and £3,000,000 of property of creditors in the hands of bankers that had been neglected by the creditor assignees. If, then, the cost of the official assignee was what was stated, they must set off against it the loss that arose from there being no one to check the creditors' assignee. It was contended that no one but those who were chosen by their fellows could manage affairs so well; but he thought that was a mistaken notion. The creditors' assignee was chosen by a majority in value of the creditors, therefore any one creditor who had a majority of debts had the power of appointing any one he pleased to be assignee. Now, the official assignee was nominated by the Court, and was only paid as each dividend was declared. It was his interest to close the affairs as soon as possible, and to make the money divided as large as possible, and to save legal expenses. It was not the interest of creditor assignees in former times to do this. In truth, the assignees under the old system were, in reality, the solicitors of the assignees, who had a very strong interest in protracting proceedings. He must say that he thought a return to that old system was deeply to be deprecated. His noble and learned Friend seemed to be distrustful of his own principle, for in the next clause it was provided that the creditors might, if they thought fit, appoint a committee of creditors to superintend their assignees. He distrusted the mode in which the assignee might discharge his duties, and made provision for a Committee to see that these duties were rightly performed-Quis custodiet castodes ipsos? They would not find creditors willing to undertake the duty in ordinary cases, and the chances were, that instead of promoting the better management of their affairs, this arrangement would only embarrass them. He believed that the effect of the clause as it now stood would be, that the interests of small creditors would be sacrificed for those of the larger creditors; and this change, he thought, likely to be fraught with the greatest difficulty and danger. He trusted that these clauses might be either modified or withdrawn from the Bill, for he believed it was the view taken by a large number of persons in the city, and he thought this might be done without damaging the rest of the provisions of the Bill, which he believed, upon the whole, would be useful to the mercantile community at large. The same argument that applied to the official assignee applied to private arrangements; but he had great doubt of the policy of any Act of Parliament that gave to any person, making arrangements in private, the opportunity of coming forward and having the sanction of courts of justice without having the matter fully and publicly investigated. LORD WENSLEYDALE said, it was not his intention to oppose the second reading of the Bill, but, at the same time, he would have been much better satisfied if his noble and learned Friend on the woolsack had acquiesced in the suggestion of his noble and learned Friend, the Chief Justice, to refer it to a Select Committee. It was a measure, the bearing and wording of every clause of which required to be well considered-though the Bill seemed to be extremely well drawn-and it was more likely to come out of the ordeal of a Select Committee in a state approaching perfection than it could be expected to leave their Lordships' hands. If his noble and learned Friend (the Lord Chancellor) should persist in refusing to refer the Bill to a Select Committee, he had only to say that, concurring, as he did, in several portions of the measure, there were, however, parts of it to which he could not assent, and which he should feel it his duty to oppose in the future stages of the Bill. He objected, for instance, to the taking away from the creditor the power of arrest, inasmuch as that power operated as a strong inducement with all both to pay their debts, and to refrain from incurring others which they might have no reasonable prospect of discharging. It was also absolutely neces sary to make a distinction between persons | to him it would be proper that the insolvent who were traders and liable to the acci- non-trader, who was forced now for the dents which arose in the course of trade, and those who were non-traders and free from those contingencies, as to freeing their future acquired property from the discharge of their debts. He objected also to the provision exempting remainders in tail from the liability to immediate sale for the benefit of creditors. first time to give up the whole of his property to his creditors, should be placed on precisely the same footing with the bankrupt with regard to future acquired property. With respect to the case of a tenant in tail in remainder, it was apprehended instances might occur where, an insolvent standing in that position, a vinTHE LORD CHANCELLOR said, they dictive creditor might be disposed to had been on the present occasion discussing sacrifice property of that description by a the principles of the Bill, and every one of premature sale while it continued in rethe questions which his noble and learned mainder, doing thereby no benefit to himFriends had raised were peculiarly and self. Now, a provision would be found exclusively for their Lordships' determina- in the Bill to the effect that when such tion; and though his noble and learned property became an estate-tail in possesFriend (Lord Cranworth) complained of the sion, it should be rendered available for the way in which the Bill had been brought benefit of the insolvent's creditors. They forward, he would have the opportunity of had therefore carefully guarded against raising his objections in Committee: but he the ruin that would result from the premafeared that if the Bill went into Committee, ture sale of property of that description. it would hardly be sufficiently attractive to He confessed that the earnestness of the draw a larger attendance than was at pre- appeal to him to refer this Bill to a Select sent in their Lordships' House. Some of Committee had embarrassed him; but the his noble and learned Friends who objected reason adduced by some of his noble and to the distinction between traders and non- learned Friends for that course induced traders had yet suggested that it would not him to think it absolutely necessary, if be right to make no distinction between a their Lordships had any wish that a Bankbankrupt and an insolvent with respect to ruptcy Bill should pass this Session, that future acquired property. Now, in framing they should not accede to the suggestion. the Bill before the House, that subject had What was it that his noble and learned been thoroughly considered, and they Friends proposed? Why, that a Select thought that inasmuch as for the first Committee should be appointed in order to time they were now about to expose nontake the evidence of witnesses with regard traders to the compulsory process of being to the probable effect of the different proobliged to give up all their property to visions of this Bill. Was this a new subcreditors, that they would be placed in a ject? Had it never been considered different position, and that therefore it before? Had there been no information would be only fair that they should give obtained on it? Why, their Lordships had them some equivalent for taking them out been deluged with every description of eviof the category in which they were at pre- dence and information on the subject. He sent placed, and give them the same ad- held in his hand the Report of the Comvantage that bankrupts now enjoyed. It mission of 1854 which went into the had been suggested that practically there minutest details, and showed that witnesses would be no inconvenience, and probably of every character likely to throw light upon no great effect produced by these provi- the matter had been examined in relation sions in the Bill. Now, of those who came to it. There were two distinct classes in under the Insolvent Act, nine-tenths were the commercial world who held different traders, and they were persons to whom opinions on the subject of the investigation the principle with regard to bankrupts of an insolvent's affairs. There were those ought to be applied; and with respect to in favour of publicity and those in favour the mode in which insolvents' subsequent of secrecy. If the Bill was referred to a property was rendered available, the Insol- Select Committee, there could be no doubt vent Court dealt very leniently with the that evidence on both sides would be prosubject, not touching in the slightest duced to an unlimited extent. The Report degree the property acquired by the in- of the Commission of 1854 stated that one dustry of the insolvent, and only applying of the causes of the diminution of business the law to one-third of the property ac in the Bankruptcy Court was the unwillingquired in any other manner. It appeared ness manifested on the part of creditors to VOL. CLII. [THIRD SERIES.] 2 I with suggestions and proposed amendments all representing that unless he consented to the insertion of certain clauses his bankruptcy Bill never had a chance of passing. Under these perplexing circumstances he had striven to please the conflicting parties. If they were to wait until there was an entire accord in the matter they would have to wait until the end of time, and he had not the slightest hope of being able to satisfy everybody by the provisions of his Bill, but he had endeavoured to reconcile conflicting interests-he had endeavoured to meet everything that justice demanded, to steer his way evenly between contending parties entertaining extreme opinions. Perfect concurrence upon this subject was not to be hoped for. He believed, however, that the Bill was one which would grow in favour the more it was considered, and, therefore, he now asked their Lordships to read it a second time. House adjourned at a quarter to Eight o'clock, till To-morrow, half-past Ten o'clock. undergo the formality of proceedings which they regarded, to a certain extent, as an exposure of their own concerns, and their objections to having the control over their debtors' estates taken from them. He (the Lord Chancellor) had last Session presented a petition signed by 4,000 merchants and bankers of the city of London, praying that a full control over the bankrupt's affairs should be given to inspectors or agents appointed by them in place of the official assignee. Thus it appeared that a large portion of the commercial community differed from the larger number of his noble and learned Friends, and desired to get rid of the official assignees and to leave the management of bankrupt estates entrusted to the creditors themselves. As he had said, if the Bill were sent to a Select Committee, every one would endeavour to impress his own views upon the Committee, and if they were to wait until they had gathered the opinions of the whole mercan- Motion agreed to; Bill read 2a accordingtile community, no Bill would be passed ly, and committed to a Committee of the this year, nor for many years to come. A whole House on Friday next. noble and learned Friend (Lord Brougham) had eulogised the official assignees, and had even desired to extend their powers; but many persons were desirous of getting rid of those officers altogether, by conferring upon creditors a power to summon a debtor before themselves, and after compelling him to disclose to them the state of his affairs, to distribute his assets at their pleasure. In the Bill before their Lordships attempts had been made to meet the views of all parties-to reconcile secrecy with publicity. By the suggestion he had last referred to, a dissentient minority of the creditors were bound by the decision of the majority; but in the Bill it was provided that some notice should be given to the creditors who were in minority, by requiring, as soon as any arrangement deed was signed, that it should be filed in the Insolvency Court, and notice given in the Gazette, so that all creditors might be made aware of it, and be enabled to appeal, if necessary, to the Court to protect their interests against the decision of the majority. One of his noble and learned Friends had expressed an opinion that where pri LORD STANLEY replied, that the batvate arrangements were made the Court teries had been ordered and would be sent, should not interfere, but he must perceive but not until June, by way of the Cape, so that some provision was necessary to guard that they would not arrive in India during the rights of a minority of creditors the hot weather; and that the transit of whose wishes were overruled by the greater troops by Egypt was only adopted on acnumber. Any one who introduced a bank-count of the emergency occasioned by the ruptcy Bill was in no very happy position, disturbances in India, and would not be and he had been assailed in every direction adopted for the future. HOUSE OF COMMONS, Monday, February 28, 1859. MINUTES. NEW MEMBER SWORN.-For Maryle- 30 Burial Places. TRANSIT OF TROOPS TO INDIA. SIR DE LACY EVANS said, he wished to ask the Secretary of State for India, Whether it is the fact that twelve Field Batteries of Artillery are ordered or intended to be sent to India; and whether the transit of troops to India by the way of Egypt is ordered to be totally discontinued. ATLANTIC TELEGRAPH COMPANY. QUESTION. MR. MOFFATT said, he would beg to ask Mr. Chancellor of the Exchequer whether any guarantee has been promised to the Atlantic Telegraph Company; and, if so, whether he is prepared to state the nature and terms of that guarantee. He also wished to know whether the United States' Government were parties to the guarantee. THE CHANCELLOR OF THE EXCHEQUER said, the Atlantic Telegraph Company originally required an unconditional guarantee, which the Government declined to give; but recently the Government of fered to give them a guarantee upon certain conditions. Those conditions, he believed, were still under the consideration of the Atlantic Telegraph Company, and when they were accepted (if they should be accepted) it would be more convenient to him to describe them to the hon. Gentleman. taxed and paid on the 20th of September. Mr. Dyke was at present unable to state what were the costs on the part of the Crown, inasmuch as they had not yet been taxed. Orders of the Day-read, and postponed till after the Notice of Motion relative to the Representation of the People. REPRESENTATION OF THE PEOPLE. LEAVE. THE CHANCELLOR OF THE EXCHE. QUER: Sir, it is my duty to-night to draw the attention of the House to a theme than which nothing more important can be submitted to their consideration. Those which are often esteemed the greatest political questions-those questions, for example, of peace or war which now occupy and agitate the public mind, are in fact inferior. In either of those cases an erroncous policy may be retraced; and there are no disasters which cannot be successfully encountered by the energies of a free MR. STUART WORTLEY said, he wished to ask whether the Chancellor of distribution of power depends in a compeople; but the principles upon which the the Exehequer had any objection to state munity when once adopted can rarely be whether or not the Government, before changed, and an error in that direction may offering to give any assistance to the At-permanently affect the fortunes of a State lantic Telegraph Company, asked them to or the character of a people. surrender the exclusive right of laying marine cables along the coast of New found land. THE CHANCELLOR OF THE EXCHE QUER said, the statement of the hon. did ask for such surrender. THE "NEWPORT."-QUESTION. MR. CRAWFORD said, he had to ask the Secretary to the Treasury whether he can state, with reference to Mr. F. H. Dyke's letter of the 28th of July, 1858, to Mr. G. A. Hamilton, in the case of the ship Newport (Parliamentary Paper, No. 28, of the present Session), the amount of costs and damages allowed and paid, and the balance, if any, remaining to be paid, in respect of the appeal to Her Majesty in Council, by which the condemnation of the said ship in the Vice Admiralty Court of St. Helena was reversed. SIR STAFFORD NORTHCOTE said, the damages in both cases amounted to £2.142 6s., and the liquidation to £690 Os. 9d., leaving a balance of £1.452 5s. 3d. The costs incurred amounted to £2,206, and the Bill was upon as is the task which have devolved |
