st. 2. c. 74. debtor, whether creditors by simple contract or by specialty, as they No. XXVI. were before the passing of this Act liable to at the suit of creditors by 47 Geo. III. specialty, in which the heirs were bound: Provided always, that in the administration of assets by courts of equity, under and by virtue of this Act, all creditors by specialty, in which the heirs are bound, shall be paid the full amount of the debts due to them, before any of the credi fully paid," applied without any distinction to debts and legacies, were held to constitute a charge for the debts and not for the legacies. The Master of the Rolls (Sir R. P. Arden) said, "The principle is perfectly different, the one being purely voluntary, the other obligatory. Whenever a man makes a will, he is supposed to do that which conscience obliges him to do; and if he shews an intention that his debts shall take place of every other disposition, and that he meant they should be paid, the court will strictly enforce that intention. The same principle will not apply to legacies." And I apprehend that this decision is admitted in the practice of courts of equity, as a clear and undoubted authority. There are other important and well known instances, in which courts of equity have gone still farther in effectuating the same general purpose. By the law of the land, a copyhold estate cannot (or at least when this note was first written could not) pass by will, unless there is a previous surrender to uses; but where the intention is the payment of debts, and in some other favoured cases, the want of such surrender is supplied, and the heir is compelled to give effect to a disposition which, by the rules of law, is absolutely inoperative. So in case of supplying the defective execution of a power, an authority is given to charge or dispose of an estate in a certain mode, and with circumstances which are attached to the authority as conditions for its exercise; and as such, are by the person creating the authority, essentially incorporated with, and form a constituent part of, the authority itself. But when payment of debts is the purpose for which the authority is exercised, the conditions attached to the exercise of it are disregarded, and treated as absolutely immaterial. But the most striking instance of the interference of courts of equity upon this subject, is in cases where a party has a general power of appointment, of which, if it is unexecuted, the creditors can have no advantage; but which, if actually executed in favour of other parties, the creditors are entitled to the benefit of in opposition to the actual objects of the appointment: so that an Act, without the voluntary exercise of which the creditors can have no claim upon the property in question, is laid hold of for their benefit, in direct contravention of the purpose and intention for which alone it has been performed. It would be foreign from my present purpose to enquire whether the several doctrines above enumerated as prevailing by courts of equity, and which are matters of daily and familiar occurrence, are consistent with the fair and proper limits of a purely judicial authority. Creditors by specialty in which heirs are bound shall be first paid. I think that, in later times, any attempts of an analogous nature would have been discouraged, as too much invading the province of legislation. The only reason for referring to them upon the present occasion, is the evidence which they furnish of the great importance that our tribunals must have attached to the end, when they have been induced to sanction such very strong and extraordinary means to effectuate it; clearly proving that the object, which so many unsuccessful efforts have been made to attain, has not only the support of theory and speculation, but the more favourite sanction of authority; and however questionable the original introduction of these peculiar doctrines of courts of equity may have been in principle, I am not aware that the effects of them, in point of experience, have been found to be prejudicial. After so many instances of the interference of the legislature, and the disposition of the judicial tribunals to effectuate the purpose of subjecting the whole property of a debtor to the honest claims of his creditors, it might reasonably have been expected, that a direct proposal to accomplish so beneficial an object by the general operation of the law would have been received with considerable approbation. It would certainly have been difficult to anticipate that it would have had to encounter the opposition which it has in fact experienced. As a motive for the proposed alteration of the law, strong instances have been cited, in which persons contracted debts to a large amount, for the purpose of acquiring property in land; and in order to secure the acquisition to their posterity, have terminated their lives by acts of suicide. But if only cases of this description, or others having any analogy to it, were to be guarded against, so rare a mischief might be permitted to remain without any material detriment to the community. From the attention which I have given to the matter under discussion, in adverting to the testamentary dispositions which have been the subject of judicial inquiry, as well as to those which have fallen under my own observation, during a long connection with the profession of the law, I am satisfied that the instances in which a debtor purposely and deliberately sacrifices the interests of his creditors to the object of enriching his family are very unfrequent indeed, and that the failure of justice to the creditors is almost invariably occasioned by mere delay and inattention; by a confidence in the adequacy of the funds which are legally applicable to the satisfaction of creditors; or by the want of technical skill in the persons by whom the instruments of testamentary disposition are prepared; and that, in adopting the proposed No. XXVI. tors by simple contract or by specialty in which the heirs are not bound, 47 Geo. III. shall be paid any part of their demands. st. 2. c. 74. II. Provided also, and be it further enacted, That nothing in this Act contained shall extend or be deemed or construed to extend to repeal, or alter, an Act of Parliament made in Ireland in the thirty-third year alteration, the law would, in a great majority of cases, accord with the wishes which the deceased owner of the property would really have entertained. It remains to consider the special reasons adduced for resisting an alteration of the law, the effect of which would apparently he to complete and perfect that system of substantial justice, which the several statutes and judicial determinations that have been alluded to have so manifest a tendency to promote. Having already disposed of the mere common place invective upon the mischiefs of innovation, the first objection that occurs, and the one which is most insisted upon, is, "That the creditors have no reason to complain, as they could not, according to the existing law, have computed upon having any claim on the real estates of their debtors after their decease; that it is their own fault that they did not take care to procure securities of a higher nature; and that, "Vigilantibus, non dormientibus, jura subveniunt." Strongly as this objection has been urged, and much as it has been insisted upon, it does not appear to me to be of very considerable weight. In the ordinary transactions and business of society, it is necessary that persons should follow the ordinary course of proceeding; and the excessive precaution which would impede the business of life by minute and intricate calculations on the several processes of the law, or on the possibility of the death of a debtor before the discharge of his debt, upon his being insolvent in respect of personal assets, but entitled to adequate freehold property, which, by reason of his intestacy, or his omission to make a just provision for the payment of his debts, is not available, is a caution which would not be very beneficial to society, and would manifestly be detrimental to the individual.Engagements are contracted with reference to the general expectation of their being performed, and the general legal powers of enforcing their performance. That it is meet and expedient that they should be performed, is an undisputed and self-evident proposition. That the legislature and courts of judicature have acted upon the principle of enforcing and facilitating their performance, is manifest from the sketch which has been traced of their proceedings. It is readily admitted that when, of two innocent persons, a loss and detriment must necessarily fall upon the one or the other, the advantage should be fairly given to him who has used the greatest degree of vigilance, by either taking a specific security, or an obligation of a higher nature; but when the question is entirely between a case of loss, detriment and prejudice on the one side, and a purely adventitious gain and benefit on the other, it is very difficult to discern an adequate reason for subjecting the creditor, who has merely omitted to take an unusual and extraordinary, and, perhaps, an inconvenient precaution, to the penalty of forfeiting his just and equitable rights, for the mere purpose of enriching the heir or devisee of a deceased debtor, whose property would have been legally subjected to the discharge of his obligations, if his creditors had found it necessary to have had recourse to legal proceedings against him, and had brought them to a conclusion during his life. In short, there does not appear, in the maxim which has been quoted, any adequate reason to decline doing that justice by the general disposition of the law, which is so much encouraged and promoted as resulting from the particular dispositions of the individual, or for involving an honest creditor in loss and ruin, in order to constitute an opulent heir to an insolvent ancestor. It has been further urged against the measure in question, that if the principles upon which the alteration of the law is proposed are admitted, they would equally extend to the cases of estates tail and copyholds; but certainly the extension of the measure to these would not be a necessary consequence of its application to freehold property. If it is wise and politic that these estates should continue to be exempt from liability to specialty debts, there certainly would be no apprehension of subjecting them to debts by simple contract. I am not aware that any public inconvenience has arisen from these estates having been made subject to the operation of the bankrupt laws, of which there has now been an experience of nearly three centuries. I certainly think it would be a material improvement of the law, if copyhold estates were equally liable to the process of the law with estates of freehold; the substantial interests of the lord being effectually protected. Estates tail stand upon a particular footing; and I am not at present prepared to state that the extension of the law to them would upon the whole be a desirable measure. If the matter were reduced to the dilemma, that either freehold estates in fee simple must be exempt from the general liability, or that entailed and copyhold estates must be subject to it, I conceive that the great principles of utility would be more effectually promoted by the general comprehension of the whole to meet the purposes of justice, than by the general exemption of the whole in respect of the special favour which is claimed in respect of considerations applicable to the particular cases alluded to. But certainly there is no such dilemma in the case; and the general, as well as the particular liability, may be left to stand or fall, according to their own respective merits. of the reign of King George the Second, intituled, "An Act for repealing an Act passed in this kingdom in the eighth year of the reign of King George the First, intituled, "An Act for the better securing the Payment of Bankers' Notes, and for providing a more effectual Remedy for the Security and Payment of Debts due by Bankers." No. XXVI. 47 Geo. III. st. 1. c. 74. Act not to re peal Irish Act of 33 Geo. 2. c. 14. [ No. XXVI. a. ] 49 George III. c. 6.-An Act for the Relief of Prisoners in Custody for Non-payment of The great additional labour which would be imposed on courts of equity is another objec tion to the proposed liability. I can by no means accede to the principle of this objection; for if the measure in question be in its own nature useful and expedient, the additional labour which may be imposed upon any particular tribunal is not an adequate reason for declining to adopt it; and if the number of judicial and ministerial appointments should be thought inadequate to the performance of the functions which the good of the community may require, an addition may be made, according to the nature and importance of the exigency. The recent appointment of an additional judge in the Court of Chancery appears to me to have been founded upon principles of great expedience; and I am not competent to form a judgment of the particular regulations connected with that appointment. But, waying this discussion, and admitting the objection to be just in point of principle, I think it is unfounded in respect of probability, and that a direction so perfectly of course as the taking an account of real and personal assets, and specialty and simple contract debts, could not reasonably be expected to impose such an additional burden upon the judges of courts of equity, as should prevent the adoption of a measure, admitted in other respects to be salutary and beneficial. The inquiry as to the existence or nonexistence of debts which are claimed as affecting property already liable, certainly forms no very great proportion of the business by which the judicial department of our courts of equity is at present occupied. The only remaining objection which I am aware of is founded upon a regard to the trial by jury, and the inexpedience of any measure which may give an accession of employment to tribunals in which that mode of inquiry does not prevail. Important and invaluable, however, as this course of proceeding unquestionably is, within its proper sphere and limits, it would be carrying our veneration for it much too far, to object to any other mode of investigation for the accomplishment of an object admitted to be beneficial in its nature, and for which such trial is confessedly inadequate. The trial by jury, by some of its essential constituents, can only be applied to a conflict between two contending parties upon precise and definite points; and where the object of even such a contest is complicated and multifarious, the limited time which can be devoted to it, renders it in general impossible to do : complete and adequate justice; and by a recommendation, having the force of a command, the matter is almost invariably referred to the decision of a private tribunal. But to arrange the various interests of various contending parties, and to ascertain, apportion and administer the common fund in which they have an interest, is a purpose to which the functions of a jury are manifestly inapplicable and inadequate and in case the relief in question is in itself proper and desirable, it would be a wanton sacrifice of the principal to the accessary, of the end to the means, to withhold the application of it, merely because, from its nature, it cannot be administered in the particular mode which, in other cases of a character perfectly dissimilar,is admitted to be peculiarly beneficial. -Before dismissing this part of the subject, it is a matter not to be overlooked, that, although the general course of relief must necessarily be administered by means of a court of equity, any particular questions respecting the existence or non-existence of a disputed debt, upon which there is a fair and reasonable doubt, is, like all other controverted facts, referred to the proper tribunal of a jury; and that in a manner best calculated to produce a direct and immediate decision upon the very point in controversy, divested of all the adventitious and incidental matter, by which, in other cases, the proper object of the inquiry is liable to be obstructed and embarrassed and that no such prejudicial consequences are, in point of experience, found to result from the existing administration of the law in respect of debts charged upon real estates by will, as are justly calculated to excite a constitutional jealousy against imposing a similar charge by the general operation of the law. The preceding observations were committed to writing recently after the rejection of the measure in question, in the session of 1815, The subject was again introduced to the notice of Parliament, in the following session, by the same gentleman who had already made so many unsuccessful efforts respecting it; upon which occasion he took a review of the objections noticed in the preceding observations, in many respects according with that which had occurred to myself. The proposal again succeeded in the Commons, and was again defeated in the Lords, but with so little discussion, that no observations respecting it have been, through the usual channels, communicated to the public, No. XXVI.a. 49 Geo. III. c. 6. Money pursuant to Orders of Courts of Equity.— [13th March 1809.] WHEREAS it is just and highly expedient that the benefit of an Act, passed in the thirty-second year of the reign of his late 32 Geo. 2.c. 28. Majesty King George the Second, intituled, An Act for Relief of Debtors with respect to the Imprisonment of their Persons, and to oblige Debtors, who shall continue in Execution in Prison beyond a certain Time, and for sums not exceeding what are mentioned in the Act, to make Discovery of, and deliver upon oath, their Estates for their Creditors 33 Geo. 3. c. 5. Benefit; and of an Act, passed in the thirty-third year of the reign of his present Majesty, intituled, An Act for the further Relief of Debtors with respect to the Imprisonment of their Persons, and to oblige Debtors, who shall continue in Execution in Prison beyond a certain Time, and for Sums not exceeding what are mentioned in the Act, to make Discovery of, and deliver upon Oath, their Estates for their Creditors Benefit; and of 37 Geo. 3. c. 85. an Act, passed in the thirty-seventh year of the reign of his present Majesty, intituled, An Act to amend so much of an Act, made in the thirty-second year of the reign of King George the Second, intituled, 'An Act for the Relief of Debtors with respect to the Imprisonment of 'their Persons, and to oblige Debtors, who shall continue in Execution in 'Prison beyond a certain Time, and for sums not exceeding what are ' mentioned in the Act, to make Discovery of, and deliver upon Oath, 'their Estates for their Creditors Benefit, as relates to the Weekly Sums 'thereby directed to be paid to Prisoners in Execution for Debt, in the 'Cases therein mentioned;' should be extended to prisoners in custody for contempt of court, by not paying money ordered to be paid by decrees or orders of courts of equity; be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That from and after the passing of this Act, all persons who are or shall be in custody for contempt of any court of equity, by not paying any sum or sums of money or costs, ordered to be paid by any decree or order of any such court, shall be entitled to the benefit of the said several Acts of Parliament, and shall be subject to all the same terms and conditions as are therein expressed and declared with respect to prisoners for debt only, entitled to the and that it shall be lawful for persons now in custody for such contempt to make application for relief under the said Acts of Parliament, at any time before the end of Michaelmas term next. Persons in custody for contempt of courts of equity for non-payment of money or costs, shall be benefit of the recited Acts. [No. XXVII. ] 52 George III. c. 32.-An Act for the Relief of Infant Suitors in Courts of Equity, entitled to Stock or Annuities in any of the Public or other Funds, transferable at the Bank of England.-[20th April 1812.] [Inserted Part III. Class XI. No. 2.] [ No. XXVIII.] 52 George III. c. 158.-An Act to extend the Provisions of an Act passed in the thirtysixth Year of the Reign of His present Majesty, for the Relief of Persons equitably entitled to Stocks and Annuities transferable at the Bank of England, and of an Act passed in this present Session for the Relief of Infant Suitors entitled to the like Stocks and Annuities, to all other transferable Stocks and Funds.[29th July 1812.] [Inserted Part III. Class XI. No. 3.1 [No. XXIX. ] 53 George III. c. 24.-An Act to facilitate the Administration of Justice.*-[23d March, 1813.] No. XXIX. 53 Geo. III. c. 24. ditional judgeassistant to the Lord Chancellor, to be called Vice-Chancel lor of England. WE HEREAS the number of appeals and writs of error in Parliament His Majesty has of late years greatly increased, and it has become necessary empowered to 'that a larger proportion of time should be allotted for hearing and appoint an addetermining such appeals and writs of error than has usually been employed for that purpose; and therefore as well as for the better 'administration of justice in the several judicial functions belonging to the offices of the Lord High Chancellor, Lord Keeper, or Lords Com'missioners for the custody of the great seal of the United Kingdom, it 'is expedient that another judge should be appointed to assist in the 'discharge of such judicial functions;' Be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That it shall and may be lawful for his Majesty, his heirs and successors, to nominate and appoint from time to time, by letters patent under the great seal of the United Kingdom, a fit person, being a barrister at law of fifteen years' standing at the least, to be an additional judge assistant to the Lord High Chancellor, Lord Keeper, or Lords Commissioners for the custody of the great seal of the United Kingdom for the time being, in the discharge of the judicial functions of their respective offices, and to be called Vice-Chancellor of England; to hold such office during his good behaviour. II. And be it further enacted by the authority aforesaid, That such To hear and deVice-Chancellor shall have full power to hear and determine all causes, termine causes matters and things, which shall be at any time depending in the Court in Chancery of of Chancery of England, either as a court of law or as a court of England, either equity, or incident to any ministerial office of the said court, or which in law orequity. have been or shall be submitted to the jurisdiction of the said court, or of the Lord Chancellor, Lord Keeper, or Lords Commissioners for the custody of the great seal, for the time being, by the special authority of any Act of Parliament, as the Lord Chancellor, Lord Keeper, or Lords Commissioners for the custody of the great seal, shall from time to time direct; and all decrees, orders and acts of such Vice-Chancellor, Decrees valid, so made or done, shall be deemed and taken to be respectively, as the &c. nature of the case shall require, decrees, orders and acts of the said Court of Chancery or of such incident jurisdiction as aforesaid, or under such special authority as aforesaid, and shall have force and validity, and be executed accordingly; subject nevertheless in every case to be reversed, discharged or altered by the Lord Chancellor, Lord Keeper, or Lords Commissioners for the custody of the great seal for the time being; and no such decree or order shall be enrolled until the same shall be signed by the Lord Chancellor, Lord Keeper, or Lords Commissioners of the great seal for the time being: Provided always, that such Vice-Chancellor shall have no power or authority to discharge, reverse or alter any decree, order, act, matter or thing made or done by any Lord Chancellor, Lord Keeper, or Lords Commissioners for the custody of the great seal, unless authorized by the Lord Chancellor, Lord Keeper, or Lords Commissioners for the time being so to do; nor any power or authority to discharge, reverse or alter any decree, order, act, matter or thing made or done by the Master of the Rolls. III. And be it further enacted by the authority aforesaid, That such Vice-Chancellor shall sit for the Lord Chancellor, Lord Keeper, or Lords Commissioners for the custody of the great seal, whenever they shall respectively require him so to do; and shall also at such other times as the Lord Chancellor, Lord Keeper, or Lords Commissioners of Vice-Chancellor to sit in ab sence of Lord Chancellor,&c. or in a separate court at same time as Lord Chancellor is sitting. * See some observations on this subject in the Appendix, No. 2. |