The Sun.
London, England, 1807-02-19 00:00:00

SIMPLE CONTRACT DEBTS.

The SOLICITOR GENERAL moved the second read.!
ing of the Bill for making the Estates of Personsdy
ing in Debt Assets for the Payment of their Simple
Contrast Debts.

Mr. HERBERT spoke against the Bill, but in a
tone sojinanklible, that we cannot pledge ourselves to
state even-the substance of his objeaions.
The MASTER of the ROLLS was by no means
sure of the propriety of facilitating the charges upon
landtd property in.. this country, and nothing could
operate more effectually in bringing about that
circa than the Bill proposed by his' Honourable
and Learned Friend. As the Law of England
now stood, a scrap of paper could not affea real
property ; it was the policy of the Law in all cases,
that all proceedings affeCting landed property should
be invested with all possible solemnity ; besides he
could not see the necessity Of the law being anxious
to do that for the creditor which he might have done
for himself, and which he'did not do. If a cre-
ditor be content with a simple contract security,
why should the law superadd to it that of a bond ?
or, if a bond had been pledged for a debt, why in
that case -should the law invest the creditor with
all the additional securities of a mortgage ? He
disapproved of the forced application of a contest-
ed principle to this case, . that the individual con-
teaaing was not to have merely the virtue of his
contract, but the virtue of all for which he might have
contracted, that is, that he was to have the aihralts
tage not only of what he had done, but of 'all he
might.have done. The Owner of a freehold estate,
by suffering.a common recovery, may transfer, that
estate ; but, Ncause he can do that, is the Law,
therefore, in any case, to determine that lie has done
it. He was no friend to that excessive earnestness
that made the Law do fbr Creditors what they did not
choo3e to do for themselves. ,He could not see any
great utility as to remedying the,past, and'in view-
ing it with relation to existing circumstances; it
appeared to him tp be aaually unjust; because it
respect,pt aaot e-isl
whichairt;Nie‘,
(lave
tin)sidaocbectf
jl.diecler;e
themselves..nt situation- from
ent beyond
lii
in another point
Of view, It fell short of that object. It had fallen
short of its objed by not including copyhold estates,
which by the existing law are subject neither to
simple contract debts, nor bond debts, nor debts ,oe
mortgage. Besides, in. a former Bill of this kind
which had passed that House, but had been lost in
the other, copyhold estates were included.
The SOLICITOR-GENERAL was extremely
glad that this Bill had, in so early a stage, met with
opposition, because opposition might introduce such
a discussion as_ would point out those defeas which
, he had not yet seen, and suggest those improve-
ments which might not have otherwise occurred .to
him. .He had heard the objeaions of his Learned
and Right Hon. Friend,
.and it -was his misfortune
that he now heard them for the first time. In, the
first place he was most willing to admit, that it was
the bounden duty of every person proposing a change
in an old-established law, to prove the wisdom and
expediency of.the change proposed : the law- which
he proposed to change had been ena6ted in,. times
wholly and essentially different from the ,present ;
therefore that law to the present times was total),
inapplicable ; since that period this country had be-
come a great commercial country, and the great
onjed of I, the Bill' proposed- % a s , to secure and faci-
litate all commercial traipai:tions, by increasing the
.security of ‘s hat are termed-merely negotiable Pa-
pers. To argue, then, from the wisciora ofour an-
cestors, however ,ra:ional, popular, and fiatterina
such an argument is, in support of provisions made
for times directly opposite to the charaner of the
present times, militates against the very authority it
would produce ; for the policy that then existed
woald be, in the present circumstances of-the coun-
try, es:aravagant and mischievous. His Leaned anti
Peght H.on. Wriend spoke of the law doing for the
crasilAor wait he might, if he pleased, have done
far nit:lst:it: Did his Learned and Right Hon.
Erknd remember, that debts contracted in the course
of tract:, cannot b.- made swecialty if in the

course of trade traders were 'not satisfied with the or-
dinary negotiable securities; but insisted every mo-
ment of having recourse to bonds-, mortgages, and
all the-securities under seal required by the existing
law, there would bean end to trade. Another oh-
Jedion to the existing law was, that according to it
all breaches of trust were merely simple contraa
*debts. If an'executor vests the property which he
holds in trust in the purchase of a real estate, and
devises that estate to his heir, the children for whom
be held in trust had upon his death no means of re-
dress whatever, and none of subsistence but what,
parochial' charity could atThrd. This, he thought, a.
strong and urgent case; and, he was sorry to say,
that such cases were by no means rare. Much more
then had the preseet age to complain'of the supine-
ness than to applaud the wisdom of those who had
gone before us. An heir succeeding to the estate
of 'his ancestor without suhjeding himselfto the
debts of that ancestor, was peculiar to England and
Ireland. It was, not the law of Scotland, though the •
law of that country was in every resped so jealous of
alienation. It .was not the law upon the Continent,
where the remains of fendal stridness more ,generally
prevailed. He contended that it should be the lead-
ing policy of every commercial country to facilitate,
as much is possible, the alienation of property._._
Is it to be argued how inconvenient a power is vest-
ed in the owner, of a fee simple estate, in trans-
ferring- that estate to any person ,whom he pleases
to rnaKe his heir ? or shall it_be at the same time
contended, that the man who can give his whole
enjdurtyo, tniLakreuiannyof
isltitselrtigehatit-yurilccioures_ -
property to another, by the dash of his pen; shall
tbrea
tio)e
trhmei t
ditor ; and yet that this same man shall not be
compelled to do- justice, but denied the power of
rendering justice to his creditor ? It had been said by
the Honourable Gentleman who spoke last but one,
that credit was already carried too far in this court.
try.—lf so, let imprisonment . for debt be abolished,
and that would operate as' a sate and wholesome
check ; for would lit not be better to do this
by
rescuing a great portion of our countrymen front
the.moral contagion of a gaol, than by locking up
the estates of the extravagant from the just claims
of-their creditors ? The creditor who recovers judg-
ment may establish. a lien on the estate during the
life of the debtor. He could not see why the estate
in' the bands or the heir should be more difficult to
come at than in the bands of the debtor himself.
This Bill, however, goes to establish no lien, but
merely to put simple contra debts on the same
footing with specialty debts, as in the due sense of
equity they are.and ought to be. He had btit Vol
observation more to make, in answer to. what 115" •
fallen from his Learned and Right Hon. Friend, as
to copyhold estates. He regretted that this was not
included. The Bill, he admitted, ought to extend
to them. Mr. Ambler's Bill included theth, but,
great as were the information and talents of that
Gentleman, the Bill was lost in the upper Howse,
and he believed it would be found upon cansider-4-
tion that the introdudion of copyhold estates was .
the chief if not the only cause of its failure. There
are no estates whichoit is more difficult to atfed than
copyhold estates ; they could not be greeted even
by Judgment darirjg the lite at the debtor. }-10
therefore, for theioresent,..was not
too. much. ;no Ar t Hot I
pass, he had great hopes that the Lirrielre
not stop there ; it was better in the -Ceginning to go
step by step. In the Court in which his Leal ned
and -Right LlOnourabie Friend presided with so much
advantage to the 'Country, it was, he admitted, the
principle to give to the contracting parties all the
benefit of what they might have contended for, but
believed that established principle related Chiefly to
the real estates of persons seized in tail.
Mr. CA VYING observed, that though feelings
of veneration for every institution of our ancestors
ought not to be carried to excess' and bigotry, they
ought to:operate so far as to prevent any rash altera-
tions. Innovations of this nature ought to. be re-
garded with the utmost jealousy, and to be examin,
ed with the utmost scraputousness. Without mean-
ing,any disrespect to the llsmourable and Learned
Gentleman who proposed this Bill, for as to his abi-
lities there' could be- but one opinion, he must, say
that it was his own opinion, and that of many others,,
that a measure of this nature ought rather to have
originated in the other Honseovhere it might have,
in the first stages, undergone the revision of the
great Law Magistrates. This ought to have been ./
the case, though the Honourable and Learned Gen-
tleman had heard of no difference of opinion on the
subject ; but if there. was a di tierence of op;thion ex
isting there, that point well deserved the lioneurai
ble and Learned Gentleman's consideration. The
particular obje& of this Bill was to, meet the cases
of fraud with regard to freehold
„ estates, but he ad-
mitted that with regard to copyhold and entailed es-
tates the tooth for frauds would still be left open. •
But lie insinuated that this was only meant as a pre-
liminary step to similar alterations with regard tecopr*
hold and entailed estates. In this view he had
strong objections to the Bill. The Hon. and Learn-
ed Gent. admitted that one door would be left
-open for fraud ie the purchase of copy-hold estates ;
he would ask him whether previous debts were in-
tended to supersede subsequent settlements of free-
-hold estates, and to be good against purchasers ? If
they were not, the °bled of the Bill would be
evaded ; if they were, then you would only be do-
ing away one opportunity tor fraud, in order to cre-
ate a stronger. The Honourable and Learned Gen,.
tleman stated, that this was becoming in a great de-
glee a commercial country, and that in that respea
its situation was become different from what it was
whet: this law with regard to .property had been es-
tablished.' ThiS was certainly true, but though he
felt well disposed towards the commercial interests
Of the country, yet he did not thin that it ought -o
be promoted at the sacrifice pro troth) of ti;e periea-
nent landed interest. He did not think that this
was wanted. But wby did not the 1-I,nr)urabie and
Learned Gentleman make his -Bill exadly cominen-
serate with his object ? Why did he not apply it
merely to the landholder engaged in commerce,
and adopt the suggestion' of the :tight Honourable
and Learned Gentleman (the Master of the Rods).

for confining iCto the first purchasers of freehold es-
tates. You might secure the -objeet by extenduig
the Bankrupt Laws to these case;. But as to the

general doetr;ne of. the adaptation' of ►aws to the sup'

psed State of the country, it would open a door for
all reformation. In the reign of the Philo,ophers
o.l!rance,, there w4§ p9thing great, or venerable 1

)r

I

iU

rig
1)-

anttnulty that was not attackea, before the great
volution which rendered these changes odious to
all !he world. If you were to look generally at the
fitness of things, he would undertake, with. half
the ingenuity of the Honourable and Learned Gen-
tleman, to prove to the conviaion of speculative
Men and many others, that there was nothing that
had been hitherto held -venerable in our law
that did not xequire reformation. He would
prove, that the right of primogeniture ought to be
abolished, and that it was improper to leave almost
the whole to lay drones of elder brothers, and
leave the rest to make their way in the world as they
could. If you beg,an with these notions, there would
be no end to them. He had, therefore, his doubts
as to the propriety of passing this law, and these
doubts were not removed. He would not, how-
ever, oppose the second reading, because he wished
to observe whatatnendrnents might be made in it,
but he rather thou :4m that he must be under the ne
cessity of opposing its ultimate success.
The soaczroß GENERAL, in explanation,'
denied his having said that it was his intention to
proceed further. He had merely stated, that it
might possibly appear proper to Parliament to make
other alterations in the course of time. He had no
personal objed whatever in this measure. His sole
motive- for bringing it for Ward was a convi6tion of
the benefits which the public Would derive from io
The ATTORNEY-r;ENERAL supported the
Bill ou the grcunds of u;, ice and moral ty ; and his
only wonder was, that a measure of this nature had
not been brought forward sooner. The obje& was
to c9napel the heir to do that justice which his an-
cestOr might be prevented from by various causes.
Our veneration for the institutions of our ancestors
must be limited by a regal& to justice. He denied
that the evil which this Bill went to remedy was
Merely a specific and partial one. The tendency of
our law was to facilitate the alienation of landed
property, and to get rid of
.feudal ties, and that was
certainly not a partial remedy which went to ren-
der the real estates of persons dying in debt, and
perhaps wishing to discharge them, liable for these
debts. It would be a great satisfaaion to many
persons„ who,- without any fraudulent intentions,
found themselves, at the moment of dissolution, un-
able to make arrangements for paying their debts
as 'the law now stood. It would be a great satis-
fadion to them to have the convi&ion that their
.debts would be paid from their real estates. He
denied that a Bill of this kind ought with any pe-
culiar propriety to originate in the other House.—
The great Law Magistrates would have the-measure
before them in due time if it passed this House..He,
thought the HOuse and the Country . were under
great obligations to his Hon. and Learned Friend
for his Bill. He was glad that the subjed had
been- brought forward and' laid open to public dis-
cussion.
A Gentleman, whose name we could not learn,
generally expressed his disapprobation of the mea-
-5117C.

..11r. PE/3C/ VAL was upon the whole rather
disposed to favour the Bill, for the obje& of his Hon.
-rand Learned Friend was one which ought certainly
to be promoted, if that could be done without injury
to the proprieiors of land, and he was glad that .
there seemed a disposition on all sides to canvass
L.' • ~,!,:hitw more :ilattireiv. The very reason that
remiered it proper to pause upon it was that which
the Hon. and Learned Gentleman ,(the Attorney
e oral) over the way had urged in its favour.—He
L,H expressed his surprise that such a measure had •
tot been proposed before. This might be owing to
some difficulties attending it which were not at prt-
sent observed, and therefore it was proper to prc-
ceed with Caution. The cases of copyhold estates
and of estates' sold subsequent to debts contracted,
mentioned by his Right Hon. Friend near him (Mr.
Canning), would be very Material difficulties. How-
ever the Bill had so much merit, with regard to =
persons dying and leaving their debts unsettled
through inadvertence, and not from any dishonest
intention, that it had hi 3 most hearty approbation at
"present.
Air. MORRIS, observed, that the case of subse-
quent settlements mentioned by the Right Hon. •
Gentleman (Mr. Canning) over the way, had been
already provided for by the Statute of Elizabeth. The
case of primogeniture was not at all like thepresent.
No remarkable grievance arose from that. He was'
glad to find that the Right Hon. and Learned Gen-
tleman below (the Master of the R 016) had not
given this measure a decided and deliberate oppo-
sition.
The Bill was then read a second time, and ordered
to be committed to-morrow se'nnight.

• • •
would arise fro M some delay m coutraaing tor, Ane
Loan.

A conversation then took place as to the prb-
priety of postponing the further consideration of
the -Report.
Lord Howtcx Was for proceeding with it, be;-
cause an important business stood for -to-morrow
(the Poor Laws), which his Honourable Friend'
(Mr. Whitbread) would he extremely unwilliur
to postpone as he ,had put it oti three times al-
ready.
Mr. ROSE, Mr. MONTAGUE, and Mr. BANXES;
requested the delay for one day.
Lord H. PETTY at length left it to the discretion
of the Gentlemen on the other side, whether the
Report should be discussed now or to-morrow (this
day), and the consideration of the Report was ac-
cordingly postponed.
The other Orders were then disposed of, and the
House adjourned.

MAILS.
AitaivaD—l Dublin, 3 Waterford. DUE-3 (.;:ittenburgh,
I Waterford.

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