HC Deb 13 December 1837 vol 39 cc1047-57
Mr. Ag- lionby

rose to move the second reading of the Recovery of Tenements Bill. He would not go through the whole matter, and would content himself with shortly stating that the reasons which induced him to introduce the measure was the fact, that in two former Sessions this Bill was read a second time without opposition, so far as affecting the principle of the Bill in the least. During the Committee on the details of the Bill some opposition was raised on the part of one or two hon. Members, an opposition which was no doubt most conscientious, but raised at an inconvenient period; and then not against the details, but against the principle of the measure; and in one night there were no less than four divisions for postponement and adjournment. On one occasion there were only two Members in the minority, and on another only one. He still hoped that if there were any objections to the principle of the Bill they would be made at once; and if there were any to the details they might be brought forward in the Committee. He had not obtruded himself upon the House in bringing forward this measure. He had appealed to the law officers of the Crown, and from what he had heard from the right hon. Gentleman opposite, that the revision of the law between landlord and tenant would fairly come within the consideration of her Majesty's Government, he had repeatedly attempted to draw the attention of the Attorney-General to the subject without effect. He had, however, had his attention called to the question from every part of the country. If the evil were great, as no hon. Member denied, they were bound to apply a remedy. This measure might, perhaps, in some respects prove to be partial in its operation, and he had never shut his eyes to the difficulty which existed. Understanding from the Chancellor of the Exchequer, on a former occasion, that some measure for the establishment of local courts was forthcoming, he had withdrawn his Bill. The same course was adopted last Parliament of delaying the progress of the Bill. He had attended fourteen Wednesday nights when the House was counted out. No delay, however, had occurred on his own part. The Bill was read a second time without opposition; but on going into Committee the Bill was opposed by two hon. Members, and the hon. Member for Finsbury having stated he had serious objections to it he was induced to withdraw the measure. To show how ancient the evil was which this measure was proposed to remedy he would quote a passage from "Burn's Justice." That learned author held that the remedy was not adequate to the evil; both, because it was uncertain and difficult of operation. The commissioners of common law, in their fifth report, held the same doctrine, in the case of tenants of small tenements, where they held unduly over their term. He had in his possession a volume of correspondence, stating the evils which existed. He must be permitted to advert to the various frauds which were continually resorted to by tenants. He had heard of one case in Liverpool where a dog was left in possession of premises. He knew also a case in Manchester where the undertenant required 5l. to induce him to quit, and the tenant from whom he held required 30l., and the head landlord was obliged to pay them both before he could obtain possession of the house. This was only one of many such cases which were continually happening in various parts of the kingdom. He had divided his Bill into two parts, which so far differed from the Bill of last Session. One of the parts referred to tenants under 20l., the other, to tenants above that amount. The Bill provided that parties should go before a magistrate, and make certain declarations in the Bill provided, and which were intended to satisfy the magistrate; first, that notices had been given in a manner described in the Bill, which notices were to give the magistrates jurisdiction; and, secondly, to satisfy the magistrates of two facts, that the relation of landlord and tenant did at one time subsist between the parties, and that it no longer existed. If any question of title was included in the case the magistrate might dismiss it to a higher jurisdiction. The Bill provided, further, that if a landlord used this process to gain possession of a tenement to which he had no right, the tenant so ousted might bring an indictment against the person who made the false representation, and an action against the landlord. The Bill gave a remedy against the landlord, for he (Mr. Aglionby) thought the magistrate ought to be protected from any action whatsoever. With respect to the 50l. clause in his Bill, which gave the landlord, after bringing his action of ejectment, power to call on the tenant to enter into security for costs, he was prepared, notwithstanding the objections that might be urged against it, to justify it, on these grounds:—He might be told that it gave the landlord power to dispossess tenants of large holdings for political purposes; but he contended that it would have no such effect. Let hon. Gentlemen look to the expenses to which a landlord was put by an action of ejectment against the tenant, who, if he happened to be a man of straw, would leave him in beside for the costs. The object of the clause was to meet cases of this sort; and it was grounded on no less an authority than the report of the commissioners of common law, from which the clause was copied almost word for word. If, therefore, he erred in introducing such a clause into his Bill he erred on great authority. He would call the attention of the House more particularly to the effects of the clause. After the landlord had brought his action of ejectment he could go before the judge, and call on him to give a summons to the tenant to come before him, prepared to give security for the costs of the suit. The judge was to determine whether the bail which he offered was considered to be sufficient or not. In what way, he would ask, would a tenant be injured by this? No one but a dishonest tenant would put a landlord to the ruinous process of ejectment; and it was but fair that, in such a case, he should be made answerable for the costs. He begged to apologise for detaining the House so long. He had adverted to some matters which might have been better mentioned in Committee; but he preferred alluding to them now, as he might not have another opportunity of answering objections.

Mr. Jervis

said, it had been his duty more than once to oppose this Bill; he had been a party to the opposition to it when he, with the hon. Member for Finsbury, divided against it, and successfully. He was satisfied that this was a landlords' Bill, that it was an oppressive measure which established invidious distinctions between the rich and the poor. The hon. Member had said sufficient to satisfy him that some measure was necessary in order to enable landlords to recover possession in certain cases; but he would ask, was not a measure oppressive which provided that as regarded the poor, a magistrate was a sufficient tribunal, whereas as regarded the rich the sanction of the law was necessary? The arguments of the hon. Gentleman only served to show the necessity for local courts. He had stated that the bill had been twice read a second time in that House in aid of his arguments, but yet the hon. Gentleman now said that he would alter it, and make the magistrate a judicial officer. But, in fact, the measure, if it became the law, would subvert the whole rule of ejectment and the nature of the common law of the land. There was no man who had any experience at nisi prius who must not be satisfied that it would subvert all their notions of real property and the law of landlord and tenant. Landlords were ready and willing enough, and rich enough also, to be able to make communications to the House of cases of hardship on their parts; but he would ask if the tenants, could they be heard, had no cases of hardship also. He had known two cases at the assizes in Cheshire, in which rich landlords attempted to oppress tenants. The cases were these:—the tenants held two inclosures from a common, for which they paid a quit-rent. The landlord gave them notice to quit on the ground of tenancy, but they contested it, and a jury, finding that it was a quit-rent they had paid, settled them in possession. Had the bill now proposed been in existence those landlords might have gone before a magistrate, made the declaration required, and those two tenants would have been turned out of their holdings, and left to bring actions against the landlords if they were insane enough to do so. He was surprised that such a proposition should come from his hon. Friend. In all towns, where the ten pound householders lived, the landlords, by keeping them constantly under notice, from half-year to half-year, would have the voter completely in their power for if he refused to do as they wished the remedy was easy—they had only to go before a magistrate, and have the tenant in four days turned out of his house. The bill of his hon. Friend assumed that all tenants were rascals, and that the law should be stretched to give a security to the landlords which was given in no other case. Though in a few cases the landlords might suffer, yet if they were more attentive to the bargains they made, and the security of the tenant, the establishment of local courts would be found a remedy for all the other evils complained of. The House, he trusted, would not countenance this bill, though there could be no doubt but his hon. Friend in bringing it forward was actuated by the best, although mistaken, motives. He should, therefore, move as an amendment that the bill be read this day six months.

The Solicitor-General

was aware that the question which his hon. Friend (Mr. Aglionby) had brought forward was so surrounded with difficulties that they had only a choice of difficulties to deal with. The question was, whether it was so clear that the balance of probabilities was against the bill, and that they should refuse to entertain it. If the evil were admitted, he knew of no better remedies than those which were proposed in the bill, and the motive for bringing the bill forward was the impossibility, under the present law, of ejecting tenants who had small holdings. It was said that this was essentially a landlord's bill—and so, indeed, it ought to be called if it gave a proper remedy to an injured landlord. If it did more than that it was an improper bill, but if it only redressed an injured landlord they would disgrace themselves if they did not entertain it, lest it should be said that it was altogether a landlord's bill. Was the landlord, he would ask, the only person interested in this bill. Had it never occurred to the hon. Member that individuals would be loth to embark their money in building small cottages if they had not some security like this? and thus, though indirectly, the Bill operated for the benefit of the tenant as well as the landlord. Individuals were now put to the inconvenience of a tedious process of ejectment, whereas by this bill the individual, having given security, or a declaration on oath before one or two magistrates, the tenant in the tenantry was expelled. It was competent to a magistrate to alter the relative position of the parties, forcibly putting the one in possession, and leaving the other to his remedy at law. There were many causes, it might be said, in which parties clearly supposed themselves to be holding as ordinary tenants, whereas it might be proved that they held by payment of a quit rent. The parties could not have an absolute security. This was a mere question of practice, and he thought the difficulty which had been thrown in the way by the hon. Member for Chester tended only to show that the balance was in favour of, and not against, the bill. It was perhaps a matter of opinion on which side the balance rested. Again, the measure introduced by the hon. and learned Member for Cockermouth was very much what had been recommended by the common law commissioners. That report had emanated from a Committee composed of the hon. and learned Member for Huntingdon (Sir F. Pollock), who was the chairman, and several other distinguished Members of the bar from both sides of the House. With regard to larger holdings he did not see the force of the objection. Under all these circumstances he trusted the House would allow the bill to be read a second time.

Sir Edward Sugden

said, that the House, when legislating generally on the subject of landlord and tenant, should be careful to satisfy that vast body of persons who filled the relation of tenant that they were not anxious merely to secure their own rights as landlords, but were merely anxious to make security for the rights of tenants. Now, he thought, the Bill was in direct violation of all principles of legislation as regards mutual remedies. He did not deny that there ought to be such a modification of the law as would, by lessening the expense, give a more speedy remedy. It was a mistake to suppose, that by making the remedy more speedy, if it was a just remedy, the landlord only was benefitted. It tended to prevent litigation between landlord and tenant, and therefore conferred equal benefit on the one as on the other. But his objection to this Bill was, that it did not admit of any modification. No alteration in Committee could make it such a Bill as the supporter of the Bill himself stated that it ought to be. It went upon this ground, to take away all security whatever from the tenant, and to place him entirely in the power of the landlord. It ought to be a matter of grave consideration whether the power of deciding upon questions between landlord and tenant should not, up to a certain amount, be given to the magistrates, though certainly this would be placing them in a very delicate position, and they would probably be the first to object to it. The hon. Mover had stated that the magistrate was to see that the relation of landlord and tenant had once existed between the parties, and that it no longer existed, but the Bill provided no such thing; it only provided that the justice was to see that a certain notice had been delivered and a certain declaration made. The tenant wrongly ejected, indeed, might bring his indictment or his action; but how seldom would he have the power to do so. A man in full possession, with his family and furniture in the house, receives a notice to quit, which he does not believe to be legal, or, perhaps, he does think that his term has not expired. He says to the landlord that he will resist him; and had he not a perfect right to do so? What, however, said the hon. Member? He would not stay to inquire whether the landlord was right or wrong, but would go to a neighbouring magistrate, and having filed his declaration, the magistrate was bound to issue his warrant, and within four days turn the tenant out of doors. What, however, was to be done with his furniture? Suppose that he was not able to find security for the costs, it was to be sold within fourteen days. Was this fair, was this consistent with the laws of England? The hon. Member would give a hearing to one side, but would deny it to the other. If he said that he would summon the tenant, and that he would hear his statement before resorting to any extreme measure of this sort, he could then understand the proposition; but he never could believe that the House of Commons could give its sanction to a measure so unjust in principle and so oppressive in practice. He. for one, as belonging to the class to which those powers were given, would feel great alarm, lest a feeling o. suspicion should be engendered in the minds of the people of England that, in sanctioning such a measure, they were thinking more of their interests than of the justice of the case. The hon. Member asked what harm will this Bill do the tenant? "I give, to be sure, extraordinary powers to the landlord, but I give the tenant something in return." What did he give? He gave him an action for damages, and an indictment for perjury. Was it possible the hon. Member was aware of the state of the law, and made such a provision as this? Did he consider the relation in which the class of persons stood who were likely to be affected by this Bill, and believe that such a remedy as this would not be inoperative? Suppose the landlord was wrong, what was the remedy which the hon. Member gave the tenant? An indictment for perjury. This was a remedy which would scarcely if ever be resorted to, and the tenant was thus wholly left without protection. He would never be a party to a factious opposition to any measure; but he would never give his sanction to a Bill which he believed to be so objectionable in all its details. He thought that in any measure of the sort which might be introduced, the tenant had a right to demand the same security as the landlord had. He was quite satisfied that, whatever difference of opinion there might be as to the details of the measure before the House, there could be but one opinion as to its principle. He should, therefore, although reluctantly, vote against the proposition.

Mr. Pryme

thought, that the objection of the right hon. Gentleman might be answered in Committee. Every man must know the difficulty felt by landlords in ejecting bad tenants. The expense and loss not unfrequently amounted to as much as the value of the fee simple of the property, and not seldom the tenant would demand a sum of money to induce him to quit. If it was thought the magistrate ought to have a power of adjudication, a clause might be framed and introduced in it in Committee. It should also be remembered that if the magistrate decided wrongly, the tenant had no remedy from another tribunal.

Mr. Wakley

, although he had voted last Session against the measure, yet thought that the House ought immediately to adopt some remedy. He thought the course to pursue, if the hon. Member for Cockermouth would agree to it, would be to refer the Bill to a Select Committee, where it might be advantageously considered with another Bill, which had been introduced for the rating of small tenements—one Bill being for the relief of landlords, and the other for the relief of tenants. It appeared to him that the two measures could be very properly blended, and this could be easily accomplished if referred to a Select Committee. It was clear that the proposition contained in this Bill would never be satisfactorily arranged in a Committee of the whole House. It had been tried in two Sessions, and had signally failed, and they had heard to-night that it would be impossible to make it a law without violating some of the first principles of the statute and common law of the land. Besides, the hon. Member for Cocker mouth was of a different opinion now from that which he held last Session and the Session before, as to one of the principles of the bill. Formerly he considered that the magistrate should possess merely a ministerial power, but now he considered that he should have a judicial authority to determine whether tenancy had expired or not. He therefore thought that the hon. Member could not object that the bill should be referred to a Select Committee, where those propositions could be maturely considered, and witnesses examined, both landlords and tenants, as to the present state of the law.

Mr. Cutlar Fergusson

could not agree to reject the bill. He considered the principle of the measure valuable. At the same time, he could never agree to a provision that the landlord should have the power to eject without inquiry as to whether the tenancy had ceased. That, however, could be remedied in a Committee of the whole House, or a Committee upstairs. He thought there should be a cheap mode of ascertaining whether the tenancy had ceased, for the expense was at present a great difficulty, especially to a poor man; he considered that some summary mode of ascertaining this should be agreed to.

Lord Sandon

said, that the evil of the present system was acknowledged by all parties as one which was grievous to both landlord and tenant. He thought that the bill should be read a second time, in order that its provisions might be discussed in Committee.

Sir Harry Verney

thought, that landlords ought to be protected by some bill —he would not say the present bill in its present state; but they ought to be protected, and he would vote for the second reading of it, in order that its provisions might be discussed.

Mr. Aglionby,

although he had no objection to a Select Committee on the bill, yet thought that this was not the stage at which this course should be adopted. If the House sanctioned the second reading of the measure, then he would consent to the appointment of a Select Committee, although he thought he could show the House that nothing would be gained by it.

Mr. Brotherton

supported the second reading of the bill. At the same time he thought the suggestion of the hon. Member for Finsbury, for the consolidation of the rating of Small Tenements' Bill and the present measure, worthy of consideration.

Bill read a second time.

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