LEASING POWERS (IRELAND) BILL. (Hansard, 15 June 1853)

§ MR. T. DUNCOMBE
said, he rose to order. He begged to submit that this was a Government Bill to all intents and purposes, and it had, therefore, no right to take priority of the Bills of independent Members. The Bill had been introduced by the Attorney and Solicitor General of the late Government. Their names, together 241 with the name of the noble Lord the Secretary for Ireland under the late Government, were on the back of the Bill. He believed that the present had adopted it. He, therefore, maintained that it should be postponed until the other Bills of independent Members were disposed of. As he should like to have the opinion of Mr. Speaker upon the question, he should move that the Bill be postponed until the other Orders of the Day were disposed of.

§ SIR JOHN YOUNG
said, he would have cheerfully admitted that this Bill was a Government Bill, if to him had belonged the great credit which was eminently due to his right hon. and learned Friend opposite, the late Attorney General for Ireland (Mr. Napier), for the great labour and pains which he had bestowed on its preparation. But he denied that it was a Government Bill in the ordinary sense of the term.

§ MR. NAPIER
said, he had projected the Bill long before he had had any connexion with the late Government. When he became connected with the late Government, he felt, no doubt, the same interest in it. He thought that the measure should be treated as one that had been substantially projected by a private individual.

§ MR. T. DUNCOMBE
said, he would ask the right hon. and learned Gentleman, whether, if he were still in office, he would persevere in pressing forward this Bill on a Wednesday?

§ SIR GEORGE GREY
said, that in as much as the right hon. and learned Gentleman the Member for the University of Dublin could not now command any of the Government days, he (Sir G. Grey) would advise him to give up the Bill altogether if he were prevented going on with it on a Wednesday.

§ MR. T. DUNCOMBE
said, he should like to have the opinion of the right hon. Gentleman the Speaker, as to whether this should be considered a Government Bill or not?

§ MR. SPEAKER
said, that he would give the hon. Member an answer if he put a question directly to him. But the hon. Member had put a question to the House in the shape of an Amendment.

§ MR. T. DUNCOMBE
said, he would prefer taking the opinion of the right hon. Gentleman upon the question as to whether this was or was not a Government Bill.

§ MR. SPEAKER
said, his opinion was, that the Bill, though at first introduced by 242 a Member of the late Government, should now be considered as one belonging to a private individual.

COLONEL DUNNE
said, he objected to the power given to the receiver under the Court of Chancery to make leases without the consent of the owner, or some one acting for him. He proposed, therefore, that there should be given the consent of the owner, or of the next in remainder, or guardian duly authorised to act for them in cases of lunacy or infancy.

§ MR. ROSS MOORE
said, by the clause as it then stood, a creditor who got into possession of an estate which had been mortgaged or incumbered, might, by virtue of an elegit or otherwise, saddle the property with a lease, although he might be paid off the very day after. He would, therefore, beg to move the addition of a proviso with the view to prevent such an event taking place.

§ MR. NAPIER
said, he would suggest, that, as he had had no notice from his hon. and learned Friend that he would move such a proviso, it had better be deferred until the Motion for the third reading of the Bill.

§ MR. ROSS MOORE
said, he was ready to accede to the suggestion of the right hon. and learned Gentleman.

§ MR. CONOLLY
said, he thought a distinction ought to be drawn between the owner and the receiver acting on the part of the owner.

§ MR. NAPIER
said, there was this restriction in the case of a receiver, that he was subject to the control of the Receiver Master in the Court of Chancery.

§ MR. FITZSTEPHEN FRENCH
said, he did not see the use of the clause at all. It was on the part of the owners of property that he made this objection. They had the Encumbered Estates Act at work; and now the right hon. and learned Gentleman proposed that the receivers in the Court of Chancery should be competent to give leases, when it was universally admitted that they were totally incompetent for the discharge of such duties.

§ VISCOUNT MONCK
said, he took a different view of the question to that of the hon. Member for Roscommon (Mr. French), and in doing so he thought he was representing the interests of the community at large.

§ MR. MACARTNEY
said, the clause 243 ought, in the first instance, to have been well considered by persons who were acquainted with the management of property in Ireland, where usually the greatest difficulty was experienced in managing it by guardians or receivers. For his part, he was disinclined to entrust to any receiver of the Court of Chancery the powers which the clause under discussion proposed to confer. He was certain he could not do so without inflicting incalculable injury.

MR. J. D. FITZGERALD
said, that upon the Committee to whom the Bill had been referred there were noblemen and gentlemen of great experience in the management of property in Ireland; and it must not be forgotten that every lease to be executed under the powers of the Bill would be granted upon the best value that could be obtained without a fine. The object of the measure was to provide for an emergency, and to work out a great public good; and the receiver master would act but as the agent of the parties most interested.

§ MR. GEORGE
said, he approved of the suggestion made to omit the clause, which he regarded as being in direct opposition to the policy and practice of the Encumbered Estates Court. In his opinion, it would be better to carry out the law, and force every encumbrancer, not only to go into the Encumbered Estates Court, but to convert his encumbrance into a greater or lesser number of acres of the estate, thus giving him a legitimate power to make leases of the property. His objections to the clause were—first, that very frequently the receiver was a person of no station; and next, that the machinery for procuring the grant of a lease from the Court of Chancery was of a very complicated nature.

§ SIR JOHN YOUNG
said, there might be objections to the clause, but he hoped it would not be omitted. There was no doubt that receivers in Ireland had often acted ruinously to estates, but that was from want of the power given by this clause.

§ MR. WHITESIDE
said, the Bill was framed on the principle that the person in possession should make the lease, whether it was 'the encumbrancer or the receiver. The receiver could only make the lease with the consent of the Receiver Master; and it was proposed, also, to limit, in some way, the power of the encumbrancer. He was not surprised at his right hon. and 244 learned Friend's attention being called to this point; and he thought the Committee should be satisfied with the promise that it would receive his consideration.

§ MR. CONOLLY
said, that if the clause were retained in the Bill, it ought to be very much modified; for, as it stood, it would tend to introduce a system of tenancy which could never be approved of by the real owner, and would act very prejudicially to the estate.

COLONEL DUNNE
said, he was of opinion that the owner of the property ought to have a voice in the matter, and that where a lease was granted, it should be done with the joint consent of the owner and the person in possession.

§ MR. I. BUTT
said, it was true that under the clause a lease could not be made at less than the best rent that could be received. But let the Committee see what discretion was to be vested in the person making the lease. For agricultural purposes, he might grant a lease for any term not exceeding thirty-one years; improvement leases for sixty-one years; mining leases for forty-one years; and building leases for ninety-nine years. And it struck him that this was a power which ought not to be given to an encumbrancer entering into possession. Why, any person who obtained a judgment against the owner of an estate for but one year's value of it might enter into possession; and what might he then do? He might grant a mining lease for forty-one years; a building lease for ninety-nine years; an improvement lease for sixty-one years; or an agricultural lease for thirty-one years. And was it right, he asked, that such discretion should be placed in the hands of a man who could not by possibility be more than one year in possession? Unfortunately, too, there would be no power in any Court to control him; and the owner would have to stand quietly by and see all this done without the means to prevent it. In his opinion it was a most objectionable principle of legislation. In conclusion, he would beg to move the insertion of words restraining the encumbrancer from granting a lease, except with the consent of the owner.

§ MR. NAPIER
said, he did not see why the encumbrancer, in receipt of the rent and in the position of owner, should be deprived of the power of dealing beneficially with the property. He expressed his readiness, however, to consider all suggestions, 245 with the view of deciding whether something might not be done to meet the objections entertained to the clause in its present state.

§ MR. MALINS
said, as the clause at present stood, it conferred leasing powers upon any encumbrancer, however small in amount, or short time in possession; and the owners of land would very naturally look upon such powers with very grave apprehension. Now, if an encumbrancer had been in possession for a considerable portion of time, it would afford this evidence—that the owner of the estate was either unwilling or unable to redeem. If unwilling, it showed that he considered the property of no value to him; and if unable, the encumbrancer ought to be looked upon in the position of owner; and the interests of society required that the person in possession of an estate should have all the incidents of ownership in the management of that estate. He begged, therefore, to suggest, whether a qualification might not with advantage be introduced into the clause, to the effect that the powers proposed to be conferred upon the encumbrancer should be exercised only where he had been in possession for the space of, say three years.

§ MR. VINCENT SCULLY
said, he was convinced that in those cases where the owner had so encumbered his property as to retain a merely nominal interest, the power of withholding his consent would be abused. He preferred vesting the power in the Court of Chancery.

§ MR. CAIRNS
said, if they waited until the owner and encumbrancer concurred in granting a lease, he feared that, in a great many cases, which they desired to provide for, they would have to wait a long time. He would take the liberty of suggesting, that the encumbrancer in possession, who wanted to grant a lease, should give notice to the owner, with all particulars, and that at the expiration of six months, if the owner had not in the meantime taken steps either to pay off the encumbrance or prevent his making the lease, the encumbrancer should have full power to grant it. In that case, he conceived there would be no ground for complaint on the part of the owner.

§ MR. G. H. MOORE
said, he saw great difficulties in the way of deciding what was an improvident lease, and he considered the clause destructive to the rights of the owner.

§ MR. I. BUTT
said, he wag anxious that 246 hon. Members should have the opportunity of discussing the question fully; and if the clause were negatived, they would not have that opportunity on the third reading. To pass the clause as a matter of form now, with the understanding that the opportunity should be given of moving an Amendment, if necessary, upon the consideration of the Report, was, he thought, the most convenient course to be adopted. And if that were the understanding, he should withdraw his Amendment.

§ MR. SERJEANT SHEE
said, he should support the clause, which he thought had been well considered by the Committee that had sat upon the Bill. He was for passing the clause as it stood, for if they went on talking at this rate, they would never pass the measure through the House at all.

COLONEL DUNNE
said, he must protest against the decision of the Select Committee being taken to bind him for a single moment. He had no confidence in that Committee, and should assert his right to discuss the question, even at the risk of detaining hon. Gentlemen; but he could not help that.

§ MR. NAPIER
said, he was quite ready to consider the suggestions which had been made, and to take the discussion upon bringing up the Report.

The SOLICITOR GENERAL
said, the principle of the clause was this—that, under certain conditions, an encumbrancer should have the power of granting a lease; and to that principle there could be no objection. But the clause as it stood was, in his opinion, highly objectionable; for the power it conferred upon the encumbrancer was an unqualified power. He understood, however, that the right hon. and learned Gentleman (Mr. Napier) wag ready to bring up hereafter, upon the Report, certain conditions and modifications, which should operate to place some limitation to the power of the encumbrancer. And subject to such a provision, the power was a very desirable one to give.

§ MR. I. BUTT
said, he would withdraw his Amendment, upon the understanding that the discussion should be taken upon the bringing up of the Report.

SIR ROBERT FERGUSON
moved an Amendment in the first section of the clause, as regarded the retention of certain covenants in leases granted under the Bill.

§ MR. NAPIER
said, the Amendment pertained more to conveyancing than to common sense; and therefore it would be more for the convenience of the conveyancer if the clause were left as it stood.

§ MR. M'MAHON
was of opinion that all leases under the Bill should include the covenants in question.