The Sun.
London, England, 1837-12-06 00:00:00

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ternary tenures? There was scarcely a single instance of such against the sums received
by him in eaeg i hitti those
a proceeding. It was unnecessary to resort to such a pro- processes bad produced any fruits, ~_ _:o . : osie
ceding against these persons. The Common Law Commis- paid ens actually equal to the whol
tea 4 C *csO st
sinners had stated that arrests were issued against persons pos- ( Lord Brougham) could not concei I.fliceOnaniGo* ee .eS
sessing large property, but only against poor persons for sums Letter calculated than this at once -'a. .r 'a 0 "ae
,of 201., 301., or 401. Then how was a debtor's land affected by the light upon this subject, and to de
tistika , 1-111.4'-•--•
Bill? Only from the date of the judgment. The consequence, he something wrong in a system ifs, •r 4- - t 1..----
was, that the owner of the land would, while the suit was in pro- such a result. Another most EPOeiti`j_e**e:._
gress, favour some other debtor, or alienate the land alto- in this question was that which had bee gi- 40•40o'rlo "
tether. It might be said that this could be done at present; in the very able report of Mr. SergeantlEek~illikatliirt
hut mark the check that now existed. If a creditor sued an the equall able experienced of the Learned Sergeant's four learned
persons they
owner of land, and he had reason to expect that his debtor and more colleagues in the profession. In the
meditated the transfer of his property, he could seize upon more convincing statement of those four learned
his person. The present Bill would remove that control had come to the clearest and most unhesitating opinion Of the
over the debtor. The Bill , gave the creditor the right of inefficacy of the law of arrest for its purposes of its peso&
seizing all money, bills, and promissory notes in the posses- cious effects upon various parties, and of its detrimental true
sion of the debtor; but who ever heard of a Sheriff's officer dency to all interests concerned, both to the interest of the
seizing money? And as to bills and notes, he would endorse creditor and to that of the debtor. is had been said by hiss
them to another person, and laugh at his creditor. Then Noble and Learned Friend (and he tated it at the close of'
it might be said that the creditor could seize the debtor's his argument when he came t the general question), ought
stock in the funds. What would be the consequence ? the law to be changed or not? That there was a very great
The debtor would transfer his money
t. The to the foreig
&later n fmight of being unds, tendency inarr pestedersonsfor not
debt, and thhs to expose tt
temheselves
law tohad the
at least
hazard
and then the creditor could not touch i
live in a furnished house, in Grosvenor-square, keep a job car- this effect, that it drrede
punable ersons frotom
pay. contraßutctieg
would'
debt%
riage and horses, and draw his dividends from France or rashly, and which they wer
Holland, without it being possible for his creditor to interfere his Noble and Learned Friend look to the opposite side of
with him. The Bill provided, as a security for the cre- the question.—( Hear, hear, hear.) What was the tendency
ditor, that the order of the Judge should attach all the per- of the law of arrest upon the creditor If it had a certain
sonal property of the debtor. Merchants and lawyers of the tendency to keep a man from running into debt, it had as
first eminence had told him that the consequences of such an great a tendency to induce persons to give credit, and ay that
enactment would be, that no man would venture to purchase tendency it, therefore, had a tendency to enable persons to get
a bale of goods without first going to the chamber of every into debt. It might diminish the inducement to get into debt,
judge to see whether there was an order affecting it. This but it increased the facility. One tendency might be set off s
was a sample of the absurdities contained in the Bill. He against the other ; but the consequence upon the whole was,
had not patience to go through the whole of them. Yet that the system increased the number of debtors. Every body
this was a measure which their Lordships were called knew that this was practically the effect. What was the
upon to pass, post haste ; and the Noble Viscount course that a tradesman now pursued, knowing that he could
opposite was surprised that they would ask fur 15 days to con- obtain a preference by arrest ? He lends his gcods possibly
ider it. The person who drew up the Bill seemed not to ima- to a fellow-trader in another line, nay, he lends his credit to
gine that it was impossible for a defendant ever to obtain judg- that other trader, and enables the latter by the goods or credit
mcnt in his favour; thus it was provided that a plaintiff might thus obtained, to get other men's goods into his possession.
imprison a defendant for his costs, but no such remedy was The instant the first trader sees the net full, the prey ledged
offered to the debtor.—( Hear, hear. ). This, too, in a Bill fram- in the place where by first lending his own goods, he
ed by the Queen's Attorney-general, and introduced by the Lord had enabled the debtor to put it, he sues out a writ ,
Chancellor of England.—( Hear, hear.) Whether this omis- and serves it upon the debtor, who is instantly obliged
sion was a slip, or whether it proceeded on the assumption that to give up the goods, or go to prisonthus the man
a plaintiff was always right and a defendant always wrong, he who first gave him credit operates the payment of what
could not state. One observation was called for by that part is owing to himself by means of those other men's goods
of the Bill, which gave the plaintiff possession of the Bills which the debtor had been enabled to peecure by displaying the
of Exchange and Promissory Notes belonging to the defen- goods of the creditor in his shop. Instances of this came be-
dant. If the plaintiff, being. a poor man—no unlikely thing— fore the Commissioners, and upon *let they founded their
should obtain possession of a too/. bill, and after deducting opinion, amongst other things, and upon that opinion they
his own claim for 201. or 301., should apply the remainder to grounded their Report. He entirely agreed with thos, Corn-
the payment of his own debts, the unfortunate defendant missioners in the conclusion at which they had arrived ; and
would actually be left without remedy —( Hear, hear.) This that conchnion was fortified by another consideraeion, not ad-
was a point which must have escaped the observation of the verted to by
uch dweltuponFwhich was, the
judgment woo obtained, the solicitor for the plaintilY might amount of the whole expense to which the community, and
call upon the defendant to disclose every particular relating to chiefly the trading part of the communine, were yearly exposed
his property, however large, and if the disclosure should not under the law as it now was. They pu tamed this question in
be deemed satisfactory, he could throw him into prison. It all its branches, and they. came to this conclusion—waich,
might afterwards turn out that the verdict was erroneous, whether it was under the mark or not he would not presume
and a new trial would be granted. Many persons were at to say, except that they themselves, upon full consideration
present confined under the direction of the Insolvent Court of the circumstances, had pronounced an opinion that it was
for fraud. As the Bill now stood, all these persons much under the mark—that the law of arrest as at pre-
would be liberated when it was passed. This could hardly sent framed and now administered cost: the trading com-
be intended. The Bill authorised the arrest of a mutiny upwards of 300,000/. dead loss in. the course of the
debtor upon a creditor swearing that he believed he year. Nothing could be more accurate than the statement of
intended to leave the kingdom. A similar power was ex- his Noble and Learned Friend, that the tneditors grettly pre-
ercised by Lord Eldon, but only upon previous inquiry; furred the power of arrest on mesne pros-se s than the power of
in the present case, however, no inquiry was to take place. taking the person in execution.—(Hear, hear, from Lord
He thought that he had shown that if imprisonment for debt Lyndhurst.) At the first, one would be ae tto suppose, if ono
was to be abolished on the ground that • the present Bill af- a-ked the trading community whether the: would pref r that
forded additional security for the creditor, the whole case fell the arrest on mesne process or the caption in execution
to the ground. He, however, did not think that this was a fair should be abolished, that they would at ()rose say " We would
way of considering the subject. The question was, ought ar- rather you should abolish the arrest be:ore judgment, for
rests for debt to continue or not ?—( Hear, hear.) The Noble that we are not anxious, but for tGod's sake leave
and Learned Lord proceeded to recapitulate for and against U 3 the power to take the debtor's persor in execution,"
the proposition. He thought that the arrest for debt was According to my Noble and Learned Friend's own argument,
useful to the tradesman by affording him a summary mode of he must admit that if there was any reason for giving cre-
hastening the payment of the debt due to him. It appeared ditors power to arrest before judgment, there was ten thou-
from the Report of the Common Law Commissioners that sand times greater reason to give the power to arrest after
the arrest for debt was made an instrument of great op- judgment. In the one instance they enabled the party,
pr: salon and injustice. The right of arresting before without any inquiry, and upon his own oath -sere y, to
judgment did not exist in any other commercial country make out his own case, whereas in the other the power was
Europe. The business of this country had long been riot exercised until after inquiry had taken place, and it had,
carried on under the present system, and it should be been shown that there was reason for the cioim. Was it not
well considered before it was abolished. The impression a very remarkable circumstance, that that which was so
upon his mind was, that it was very desirable to find much prized by the trading community—thet which they
some substitute for it. The right of arrest, after judg- made the greatest struggle for—that which alooe they re-
went had been obtained, was a different matter. This right garded at all or set any value upon,_ giv:ng the other, namely,
existed in all commercial countries. If that right was taken the arrest in execution, to their Lordships, to be dlait with
away, and the creditor did not succeed in discovering his as their Lordships pleased—was that for which not one-
debtor's property, the latter might live at his ease, without dis- hundredth part so much could be urged in favour of as in
charging his just debts. He, therefore, thought that the favour of that for which they did not care at all. That was
power of arrest after judgment ought to be retained ; but he a circumstance in itself sufficient to excite suspicion as to
was open to conviction, end therefore he would propose that the value of such an authority, and the weight of the argu-
the Bill should be referred to a Committee up stairs, where ment grounded thereon. But when their Lordships came to
all its details as well as its principle might he fully considered. look a little near( r into the matter, they would find a reason
It was right their Lordships should be aware that the Commis- for all this. When a man had run the gauntlet of ail the
:inners themselves were divided on the principle of the melt- Courts, first by the arrest, then the holding to bail, then the
sure. He wished their Lordships to consider the arguments trial, by means of all the costly machinery of judges, and jusv,
on both sides, and particularly the able observations of Ser- and witnesses, and Counsel, and a verdict found perhaps for
pant Stephen. The Noble and Learned Lord concluded by some 401. or 501.--after all this bad been put in motion, and
stating that he would not oppose the second reading of the had thus pressed upon the estate of the debtor, as well as
Bill, but that after it was read a second time he would move upon the patience and comfort of all parties concerned, and
that be referred to a Select Committee.—( Hear, hear.) in the end, a judgment having been obtained and entered up,
Lord BROUGHAM then rose and said that the matter execution was sued out upon it, and the body taken and corn-
had been before the country for discussion for the last five or mined to prison—at this period of time the creditors knew
six years, and he saw no necessity, therefore, for referring it very well from practice, what indeed it only required their
to the slow and tedious process of a consideration by a Com- Lordships to run over in their minds a few of the steps in a
mittee up stairs. If he were disposed to make any observe- suit at law clearly to understand, that it was a poser not worth
on the remarks which had fallen from his Noble. and having, that the estate of the debtor hail all been dissii.a.ed,
Lions
Friend, he should say that in some of those remarks the money squandered, the goods sold, and the proceeds
Learned
he entirely agreed, while from others lie as entirely dissented. absorbed, and that nothing remained but literally the car-
He bad no means of knowing what were the feelings of the case of the cause of their failure—the body of the defen-
community generally upon this Bill. He did not know what dent. The trading community knew this, and therefore ar-
might be the measure of its unpopularity out of doors. His rest in execution was of no profit to them. Nay, they knew
neat deal more ; they k
Noble and Learned Friend had said that the decided opinions a gnew that it ceased to be profitable
of the trading part of the community who were most inte-
from the moment they found that the cause was to be de-
rested on this point were that the powers given to creditors fended and that they were to be dragged
procee into court : that
was to say, from that point in the
were of no avail, and were not suited to the purposes intended. di •gs from which
the line was drawn which separated the arrest before judg-
Now he (Lord Brougham) thought that although persons in
in trade, like other parties, knew perfectly well their own
merit from the ulteiior proceedings leading to the arrest
grievances, and the operation of what had passed, yet they
in execution. When that line was overpassed they knew
were not the st adapted to judge of the tendency of pro- that all the power which the present state of the law gave
be
posed alterations. He would state a recent instance of this
them was no remedy at all, and they therefore cared not
at all if it were taken away. But otherw.se, far otherwise is
in the case of the proprietors of newspapers on the late
it (said the Noble and Learned Lord) with that first part, with
reduction of the duties. He was not in town at the
the power of arresting on pzesne process, that is to say, as has
time, but he believed that the proprietors of the London
been powerfully described by both my Noble and Learned
newspapers, with one or two exceptions, had cried out
and used every means in their power to prevent the Friends--that power, that frightful power—l regard it with
against,
reduction of the stamp duty from 3d. to Id. Among the abhorrence—which any man, with any motive, however malig,
grounds stated by the proprietors of these large mercantile nant, for any purposes however hostile, for any design however
establishments for their objection, was the statement of a fear atrocious, for the furtherance of any conspiracy, however detes-
that they would receive great detriment and no benefit, an
nei
d table,
fien dukeagainst his neighbour, may put in force against that
that persons were not aware of the risk incurred. A compro- hbou
mise wasehe believed, effected ; and he was compelled to say
that he feared that this powerful, and in most cases, useful
that he had no right to enjoy, or to gratify any feeling which
he had no right to entertain—that power of calling down upon the
class of persons was listened to more than the wants of the
unfortunate all the force of the law, and of making the law in his
public.—( Hear. ) And what was the result? Why, that the
proprietors received a great benefit—that they put, in many own hands an instrument of working cruelty, injustice and op-
pression. That, my Lords, is the nature of arrest on mane pro-
cases, 2,0001. a year into their pockets—that their Lord-
ships and the wealthy had a reduction of 2/. or 3/. a year cess. It has no other nature than that. Ile has only to screw
from the charge for their papers. The poor man, who himself up to make oath that his neighbour owes him 201.,
could ill afford the money, had lost by the measure, because and then, without the possibility of inquiry, that neighbour
he had been deprived of that undue but cheap supply which may be consigned to prison. That neighOour may he bailed,
lie bad been in the habit of receiving from the unstamped if he can find it, by paying the expense of it. lie may pay
the money into Court.—[But, suppose he doss not owe it ?
press. The Legislature was, in his (Lord Brougham's)
not But suppose he owes it, and has it not ?It does
b
opinion, fully justified in putting down the unstamped news- y the Marquis of Lansdowne.—To that I shall come pre-
papers ; but at the same time the poor man had suffered a followsentl because he owes it that he did not at the time of
.
direct loss, whilst the proprietors in these mercantile estab-
contracting the debt think he should be able to pay it ; that
lishmonts, although they ran no risk, experienced a direct
he did not believe, nay, that be had not a right to believe,
and certain gain. And this proved that, however acute per-
that he should be solvent, and be able to pay it. But he is
sons might be in the immediate matters of trade, yet that
consigned to prison, and though he may afterwards give
their view of the manner in which proposed legislative bail, and though upon trial he may be found not to owe one
enactments would affect their interestsO was not to be im-
farthing, he is stamped, stigmatised, and branded all the
plicitly relied upon. His Noble and Learned Friend bad rest of his life as a man who has once been in gaol for debt.
gone through the provisions of the Bill in detail. He
—( Hear, hear.) My Lords, that is one power, but not the
( Lord Brougham) ar reed reed with him in his opinion as to the
remedy by digit, and as to the impolicy of the power of ar- only one. My Noble and Learned Friend says, why does he
not pay the money into Court?. My Noble Friend behind me
rest before judgment ; but he could not go along with his Noble
has well observed that he may not owe it. But it is asked,
Friend in the opinion that stock in the funds might, if pro-
why not pay the money into Court? That is all well enough
perly guarded, and if trust estates were properly fenced in if 20/. be the sum ; but the same man of conscience who 'has
with restrictions, be rendered liable to seizure. He could
screwed himself up to
conceive nothing more mortifying to a tradesman than thatmake oath of a debt of 20/., will, upon
a person having incurred debts to a large amount should occasion and fora purpose, screw himself up to make
retire within the walls of a prison, and squander at his ease oath to a debt of 20,000/. ; and though a man may ob-
tain bail for 201., I should like to know the man who, if
his fortune—(Hear, hear)—that he should withdraw his
horses from the reach of his creditor by means of his job- arrested for a debt of 40,0001. or 50,000/., could easily find
two housekeepers who would be willing, ay, I might say
man ; that his furniture should be hired, and that he should
able, to make oath that they were worth 100,000/. above all
Eve upon the rents and profits of his estates, the incomings
debts and reprisals, in order to be bail ? What is the con-
gaol that man oes. Ha may, by special
of his mortgages, and the interest from his funded property ;
whilst the creditor should run a great risk of failure from sequence? To
application, by g
possibility obtain his Narration, but not
the want of the very funds which the debtor was squandering
always ; it would not be a certainty, and sometimes it may be
Nothing could be, he conceived, more vexatious or more im-
proper than that that income should not be made available impossible. lam speaking of what I know to have hap-
for the payment of his just debts. pened. lam telling not a tale of imagination, by putting a
Lord L YNDHUR ST did not mean that these funds should case to help an argument or to illustrate a statement, but I
be unavailable. am repeating the feet of a person arrested in a case for
Lord BROUG HA M—The principal ground which the that amount, and which is quite as well known as that
Noble and Learned Lord had taken for objection to the mea- the Common Pleas are sitting at Westminster, where, by
sure was that no new securities could be given to creditors ; Magna Charta, the Court must be. It was the case of no ob.
score individual,
and he had declared that he would not take away the power he was a man of large resources, of high
of arrest, because nothing more valuable had been provided as character, of great name, not in this country alone, but in
a substitute. What had been the result of the use of bailable Eu
Lorrop d LYNDHURST.—Mendizabal.
e.
process as compared with that of serviceable process ? Why
the greater portion of the writs issued were on serviceable Lord BROUGHAM.—A man who rose to be Prime Ma
p Mater of a foreign state was arrested upon oath that he owed
process, and on these more than one half of the actions were
the next step was taken in the cause. They 120,000l.—(82,000L,/o by Lord Lyndhurst.) At all events it
settled before
did not lead even to an appearance. This process, there- was a sum which made giving bail quite out of the question ;
fore, operated favourably for the payment of the debts, and
and which made it, of course, perfectly impossible that he
this was the true test, the proper criterion, by which to judge should quit the country. Nov, my Lords. only see
What was the proportion what might have happened. A rival trader being minded
of the value of the kind of suit.
with respect to the other process, for this comparison was
to engage in a voyage from Liverpool upon a mcr-
candle speculation, knows that a certain captain is be-
the test ? Why, in the other kind of process, only one-
forehand with him, and ready to sail to a port of
sixth of the actions were settled. He had shown that half
the debts were settled in one case, and one-sixth only in
utting an imaginary case, but stating what has actually
trade on the Spanish Main. Here, again, I am not
happened, and more than once. I have mentioned Liverpool,
the other.—( Hear, hear.) But there was other evidence P.
on this point. A very great number of traders had formed
an opinion unfavourable to the abolition of arrest for debt. but it might have been any other to..vn. Well, dd.; rival
Some entertaining that opinion, had given evidence of an trader knows that the Captain is about to sail to the Spanish
important nature as to its real working in their own cases, Main, and that he himself will Lot be ready with his carp
and be remembered a very remarkable case which, from the for a few days afterwards ; and as he is going to the same
extent of the transactions of the individual, might be said to Place, and wishes to obtain a preferen •e over his risel in
give an important fact with regard to the whole question, he that market, he swears to a debt bejend the amount for
meant the evidence given by a great retail grocer, with vast which his competitor can find bail, has him ar-
transactions, amounting to no less than 200,000/. in the rzstee, claps him into prison the evening before he is about
year. This person had formed an opinion favourable to to sail, during the time that his own cargo is prepar-
arrest for debt, and was against abolishing it; nevertheless, ing for that foreign market, and thea m
placesike sail, has the
from his regard to troth, he declared that in his own case, preference over Tire, and gets to the befoe the li-
the result of that system _was this, that if you put all the beratien of Lis ra al. For this he esrtdely risks an action
sums of money together which he had paid in the course of for malicious arrest, to which I can ly sv that in or on
any given year for the expenses of executing Processes of to support such an action you must onto nly prove malice,
arrest upon his different debtors, and placed that amount but you must prove that the party has no probable cause