SECOND READING. (Hansard, 1 March 1878)

THE DUKE OF ARGYLL,
in moving that the Bill be now read the second time, said, its object was to remedy a grievance under the existing law. At present where an entailed proprietor became under liability to his tenant for improvements to be effected on the estate, and died before they were completed, the obligation to carry them out was not obligatory on the heir—and except where the estate was given as security for money borrowed for the purpose, the obligation fell on the executor, not on the heir. That was a very unsatisfactory state of the law. In some cases the evil effect of the law might be avoided, either through the agency of various Improvement Companies Acts which had from time to time been passed on the subject, or by other indirect means; but if the person in possession of an entailed estate chose to spend his own money—as many of the Scotch proprietors did—and did not choose to go to the trouble of borrowing to make the improvements, then that obligation would fall upon his executors, and not upon the heir. That was the state of the law at present. The Bill consisted of four clauses. The 1st clause was to the effect that— All obligations undertaken, whether prior or subsequent to the passing of this Act, by an institute or heir in possession of an entailed estate in Scotland, in any lease granted by him as proprietor of such estate for the execution of any improvements of the description contained in the third section of the Entail Amendment (Scotland) Act, 1875, shall, in case of his death 531 before complete fulfilment of such obligations, devolve upon the heirs succeeding to the estate after him, who shall in their order be bound to relieve his executors, or other personal representatives, of such obligations, so far as unfulfilled, and to repay to such executors, or other personal representatives, any sums of money which they may be called upon to pay and may have paid in virtue of such obligations. The clause was, of course, not to apply to any case in which the grantor of the obligation had in express terms declared his intention to impose the obligation upon his executors to the relief of his heirs of entail. It might be thought that this was a very unimportant amendment of the law; but in Scotland— where the system of 19 years' leases prevailed—it was almost the invariable practice for both new and old tenants to ask for important improvements to be made, and very often they were undertaken at very considerable cost, and required a considerable time for their completion; and under the present law the whole came upon the executory if the owner died before completion of the works. The 2nd clause provided that— The heirs succeeding to such institute or heir in possession as aforesaid shall in like manner as above provided be bound, unless otherwise expressly directed by him, to relieve his executors, or other personal representatives, of all liabilities which he may have undertaken in any contracts or agreements with reference to the execution of improvements of the description aforesaid on the mansion-house and offices of the entailed estate, or any other parts of the estate not under lease, and to repay to such executors or other personal representatives any sums of money which they may be called upon to pay and may have paid in virtue of such contracts or agreements. That was the first part of the Bill. Of these clauses he was sure their Lordships would approve when they considered the present state of the law. The 3rd and 4th clauses had for their object the removal of another anomaly. In Scotland the laws of entail were formerly much more stringent than the corresponding laws in England. It was possible in Scotland formerly to entail land for ever, and the powers of the heirs in possession were almost nil, owing to the stringency of the entailing instrument. In that state of the case the Montgomery Act was passed about 100 years ago, enabling proprietors in possession to spend money upon certain conditions being observed. At a later period Lord Aberdeen brought in a Bill 532 granting a further measure of relief in respect to family provisions. Since that the Montgomery and Aberdeen Acts were the only Statutes under which the old entail laws could be meddled with so as to enable provision to be made for younger children. In 1848 the Ministry of Earl Russell introduced an Act, the object of which was to introduce into Scotland the English principle of limiting the entail to lives in being and one life beyond. But in that Act there was an extraordinary provision reserving the liberty given under the Montgomery and Aberdeen Acts to the old entails, and abolishing it for the new; so that, in point of fact, the result was a greater stringency for the new entails. Their Lordships might ask why the Government of the day introduced a Bill of that kind? Well, it was an incident illustrating the dangers of the course sometimes spoken of, in which the laws of England were to be carried bodily into Scotland—a course very likely, indeed, to prove unwise; for in the two countries these matters were not always regarded in the same spirit, and the habits of life were different. The theory of the law in England was that the owner of an entailed estate had no other power than that which the instrument under which he held conferred. Those who introduced the Act of 1848 jumped at the conclusion that if the same principle were introduced into Scotland, there would, for the future, be no necessity to provide for younger children by law; because such provision would be made by the instrument itself. The consequence was that conveyancers went on drawing deeds of entail precisely as under the old law, and giving no power at all, or a very limited power, with respect to improvements or family provision. This state of things came to the knowledge of the Government, and legislation was passed, making the Aberdeen and Montgomery Acts apply to new as well as old entails. First, there was a Permissive Act, and then in 1868 an Act was passed applying the provisions of these Acts at once to all entails, new and old. The present Government introduced two years ago another Bill, and a very valuable one, too. They adopted the principle of the old Montgomery Act, and very fully amended the schedule of improvements. But, strange to say, this power was again 533 limited to the old entails. He could not help thinking that the point could not have been brought to the attention of the Government; but, at any rate, the result was that persons holding estates under the new entails had not got the advantages of the valuable Act passed in 1875. That he did not consider a reasonable state of things, and the purpose of this Bill was to correct it. The 3rd clause accordingly provided that certain sections of the Act of 1875 should apply to all entails. The remaining clause of the Bill proposed that the heirs in possession of entailed estates, whether holders under tailzies made either before or after August, 1848, as well as such as should be made in future, should have the same power with regard to improvements which the Bill of 1875 contemplated. Since this Bill was brought in, he had had numerous communications from entailed proprietors in Scotland suggesting alterations — one man suggesting one thing, and another dwelling upon another point. He was bound to say, with regard to several of these communications, that he approved of them. But he was exceedingly anxious that this Bill should pass, and he wished to limit it to its own object, and not to introduce debatable matter. It had been under the consideration of the legal bodies in Scotland, and they had suggested one or two alterations which, as far as he read the Bill, did not at all interfere with its principle. However, all these matters could be talked over in Committee, or might be considered by a Select Committee. The Bill was extremely simple in its character, and contained only the four clauses he had explained.

THE LORD CHANCELLOR
said, he did not rise to oppose the second reading —he should give the Bill his support— but to make a suggestion. The subject it dealt with was one of a very difficult character; but the provisions of the Bill did not so much raise questions of principle as of detail, and were, for the most part, of so technical a character as to be unsuited for discussion by the Whole House. He had communicated with the noble Duke (the Duke of Argyll), suggesting to him that the more convenient 534 course would be to have the Bill considered before a Select Committee. He knew there were several Members of their Lordships' House who were greatly interested in the provisions of the Bill, and it might be better that the question should be considered by a Select Committee than that it should be discussed in Committee of the Whole House.

THE EARL OF GALLOWAY
said, that the word "improvements" would require to be more distinctly defined than it appeared to be in the Bill as it now stood—for instance, there was the question of railways, or tramways, which the proprietor of an entailed estate might have constructed for the benefit of the estate—but it was questionable whether, under the Bill, this would be considered an "improvement," unless some alteration was made in the 5th sub-section of the 3rd-—the Interpretation—Clause of the Act of 1875.

THE DUKE OF ARGYLL
would accede to the suggestion of the noble and learned Lord on the Woolsack, and he was sure that any suggestion which the noble Earl had to make would be considered by the Select Committee.

Ld. Chancellor.	L. Stewart of Garlies.
Ld. President.	L. Brodrick.
E. Doncaster.	L. Elgin.
E. Minto.	L. Selborne.
L. Elphinstone.	L. Blackburn.
L. Sundridge.	L.GordonofDrumearn.