HC Deb 27 May 1873 vol 216 cc503-13

Bill considered in Committee.

(In the Committee.)

Clauses 10 and 11 agreed to.

Clause 12 (Right of any person to succession as heir may be challenged within ten years).

MR. GORDON

moved to leave out "10," and insert "20," the object being to extend the period from 10 to 20 years within which the right of a person to an estate of inheritance in land by succession as heir might be challenged. The Bill proposed not to require any registered title at all. The great safety and security of titles hitherto in Scotland had been that they appeared on the register, and that there was no security in a title which did not so appear. His Amendment was clearly in accordance with the principles regulating the rights of parties in Scotland, and which had given so much security to those rights—namely, that no prescription should count until there was a title on the register, and that the period of prescription should be 20 years in reference to heirs.

Amendment moved, in line 39, to leave out "ten," and insert "twenty."

MR. M'LAREN

said, he had heard a good many people, both lawyers and and those who were not lawyers, discuss this matter, and he had not heard one who had not objected to the proposed period of 10 years.

THE LORD ADVOCATE

said, he could not consent to the Amendment of the hon. and learned Gentleman. They had heretofore had two periods of prescription in Scotland—one of 40 years applying to the title to the estate, and the other of 20 years, applying to the title of a person to be heir. These were two totally distinct things. The law which provided 40 years' prescription as to title also provided that after 20 years' possession as heir the right of the party as heir could not be disputed. He proposed to preserve the same proportions as at present between the two periods of prescription. The reduction of the prescription of title to an estate to 20 years, and the possession to a faulty title of the heir to 10 years, had been demanded in Scotland with almost perfect unanimity. It should be remembered that the period of 20 years was established at a time when things went much more slowly than at present, and particularly in Scotland. The rapidity with which intelligence flew, the general knowledge which was possessed all over the country as to the ownership of estates, was much greater and more accurate now than formerly, when the safety of the public required that a period of 20 years should elapse before the title could be put beyond all challenge. Now, however, the period might very fairly be reduced to one-half. The Solicitor General for England had informed him that it was proposed, with the general assent of the legal profession in England, to reduce the period of prescription in England from 20 to 10 years; and surely if this were considered sufficient with regard to general prescription in England, a similar period in the case of the right of the heir in Scotland could not be regarded as unsafe.

SIR EDWARD COLEBROOKE

thought there was a good deal to be said in favour of shortening the period of prescription where it could be done safely and consistently with the rights of claimants; but he must say that he could not recognize the distinction which was made—although it had existed so long in Scotland—between title by purchase and title by inheritance. His hon. Friend had done away with the security of the judicial inquiry in the case of inheritance, and consequently he had taken the question entirely out of the category in which the Lord Chancellor had put his Land Transfer Bill. Further, it could not be said that the proposals in the Lord Chancellor's Bill were part of the English law until that Bill had passed both Houses, and he for one questioned whether that House would adopt so short a period of prescription for England as 10 years, unless it were accompanied by a provision for some special inquiry as to the succession to an inheritance.

THE SOLICITOR GENERAL

thought it strange that in the course of this discussion so little allusion had been made by hon. Gentlemen who came from the north of the Tweed to a little country called England. He should have imagined that the laws and the experience of England with regard to real estate would have had some little weight with those who were considering changes that were about to be introduced into the Scotch law. What was the experience of England? In ancient times the limitation to claims to land was 60 years; but this period had been found too long. The main object of limiting the period of prescription was to quiet people in their possession of real property, and to prevent unfounded and vexatious claims; and it was found from long experience that the number of successful claims made by persons alleging their titles to estates after the lapse of a considerable period of time was so small that it was not worth while to leave the door of litigation open for so long a term in order that these exceptional claims might be entertained. The result was that in 1834 the period of prescription, or as it is called in England limitation, was cut down from 60 to 20 years; and this alteration of the law had worked so successfully that during the present Session, and as he believed with the approbation of the legal profession and of the public, the Lord Chancellor had introduced a Bill into the other House to shorten the prescription of 20 years to 10 years; and whether the Bill were passed or not, it would afford an indication of what was the opinion of the great majority of professional men on the subject. Scotland, however, was not invited to go so far as this. At present the Scotch period of prescription was 40 years, and the Bill under consideration only proposed to reduce that to the period which was still the English law, but which it was hoped would be cut down one-half. In Scotland, moreover, there was a register, which did not exist in England, and this gave an additional security to the titles of the people of that country.

MR. GORDON

said, it was a mistake to suppose that Scotch lawyers had taken no notice of what happened in England; but the fact was they had found that the system adopted in Scotland was the wisest. This was proved by the circumstance that the Lord Chancellor's Bill proposed to borrow a portion of the Scotch system as to registration, which he considered was essential to the provision of proper facilities for the transfer of land.

Amendment put, and negatived.

An Amendment made.

Clause, as amended, agreed to.

Clause 13 (Possession to be primaâ facie evidence of heir's right in questions with tenants, &c.)

MR. GORDON

said, he thought the present law was well understood, and he submitted that it would be better to leave it on its present footing than to adopt this clause, which was condemned by conveyancers generally.

THE LORD ADVOCATE

said, that in his own opinion the law as it at present stood was sufficient; but unfortunately some uncertainty was held to exist, and in a recent important case of disputed succession, tenants had refused to pay their rents pending the dispute. They had been ordered to pay, but he thought it well to make the law certain. He therefore asked for the withdrawal of the Amendment.

MR. CRAUFURD

said, that this being merely a declaratory clause, there could be no objection to it.

Amendment withdrawn.

Clause agreed to, with an Amendment.

Clause 14 (Legal remedies to prevent entry preserved.)

MR. GORDON

said, that by the existing law—now declared by the preceding clause—a man who obtained possession was entitled to draw the rents until his claim was set aside; and then he very often contrived to retain the rents. He thought it essential that power should be given to the Court to deal with such cases, and would therefore move to insert at end of clause, the words— And it shall be lawful to any person claiming right as heir to an estate in land to apply to any Court of competent jurisdiction, and such Court may, notwithstanding the completion in the person of another of a title under this Act, regulate from time to time, during the dependence of such question, the possession of such estate, and may allow possession to either or to neither party, as such Court may deem just or expedient, or may otherwise deal with such estate, as regards the interim possession and care and management thereof as if no such title had been made up.

THE LORD ADVOCATE

said, he had had this matter in view in preparing the clause as it stood, and thought he had thereby provided for every case with sufficient safety. The object of precluding the possibility of doubt in this matter was, however, quite sufficient to call for the introduction of some words, but he thought the words proposed by his hon. and learned Friend were not well adapted to obtain the end in view. He should propose to add the following words as better accomplishing the purpose— And it shall be lawful for a Court of competent jurisdiction to regulate possession, pending such trial, as such Court shall see just, notwithstanding of the completion under this Act of the title of any person as heir.

MR. GORDON

said, he would accept the words of his hon. and learned Friend.

Amendment withdrawn.

Words added.

Clause, as amended, agreed to.

Clause 15 (Recovery of duties and services not being casualties.)

MR. J. HAMILTON

moved an Amendment the effect of which was to revest in the superior the estate of property in the event of non-performance by the tenant of his feu-duties.

THE LORD ADVOCATE

said, this was rather a technical matter, and it was a process that was not at all common in Scotland, for he never saw such a process during the whole course of his professional experience. He, however, thought it very proper that such a process should be retained, and he would adopt the Amendment with some alterations.

MR. M'LAREN

said, that this was by no means a matter which never occurred. The Corporation of Edinburgh had about 3,600 of these feu-duties, which produced upwards of £8,000 annually. The value of the small feu-duties consisted in the casualty of a year's rent on death or other change, and to compel the superior to recover these small sums by action before the Sheriff would be virtually to extinguish the right, for the expenses would be greater than the sums recovered. It was therefore absolutely necessary to retain this power.

Amendment made.

Further Amendments made.

Clause, as amended, agreed to.

Clause 16 (Redemption of Casualties.)

MR. GRIEVE

moved, in line 3.5, after "cent" to insert— The Sheriff of the county where the land lies shall have power, on application from either party, to fix the value, and his judgment shall be final, and not subject to review. He thought this form was rather better than that of which he had given Notice.

THE LORD ADVOCATE

said, the provision of the clause was this—in the first place, parties were to have the power to have casualties redeemed on any terms that might be agreed upon. These terms might in some cases be too low, and in others they might be too high; but, as a general rule, they would be fixed by persons of experience in such matters. It was very desirable to avoid litigation and expense, and therefore he did not approve of the Sheriff being brought in. He hoped the hon. Member would be satisfied with the fixing of a casualty and a half as a maximum.

MR. CRAUFURD

thought the Amendment worthy of consideration. There were plenty of cases in which there was a feu-duty of a few pounds, and yet in which the real value of the property had through time increased to an enormous amount. One might, for example, have a feu-duty of 5s., and have a house built on the feu worth £20,000. In such a case the superior was not likely to enter into any agreement for the commutation of the duty unless a very large sum were offered in payment. He believed the clause as it stood would not meet the justice of the case, and he suggested that the Lord Advocate should either accept the Amendment of the hon Member for Greenock, or propose some other way of putting the provision into harmony with the rest of the clause.

MR. M'LAREN

thought the chief objection to the provision was not that stated by the hon. and learned Member (Mr. Craufurd). Whenever it appeared to the feuar that he would have to pay a large sum to be allowed to redeem, his plan would be not to make any offer at all. The real objection, however, as it seemed to him, was this, that no means wore provided of obtaining a real valuation. The object of the Bill was to abolish these troublesome casualties, and yet no means were provided for carrying it out. In England the practice was for the Commissioners to form a sort of jury, and try each case on its particular merits. Arrangements for commuting casualties were thus very much facilitated.

THE LORD ADVOCATE

said, the clause had been framed as it stood because the option being given to the vassal, it was thought right to give the superior the same. He quite appreciated the remark made by the hon. Member for Edinburgh, that it was advisable that these casualties should be put an end to, and agreed with him that if any other course could be suggested of meeting the difficulty, it would be well worthy of consideration. Hitherto he had not been able to see his way to deal with the matter satisfactorily, but he would renew his attempt, and see if he could not find some means of obtaining the end they all had in view.

Amendment, by leave, withdrawn.

Clause agreed to, with Amendments.

Clause 17 (Redemption of casualties by a Mid Superior) agreed to.

Clauses 18 to 21 agreed to, with Amendments.

Clause 22 (Form of Conveyances).

MR. GORDON

said, the clause as it stood merely made the registering voluntary, whereas it was of the essence of the thing that it should be made compulsory:—he would therefore move to add at end of clause the words— That no deed or conveyance, instrument, or writing, whereby any real burden upon land is assigned, conveyed, or transferred, shall be effectual in competition with third parties unless the same is or shall he recorded in the Register of Sasines in the same manner as any heritable security, and such deed of conveyance, instrument or writing, shall take effect in competition with third parties only from the date of such registration.

THE LORD ADVOCATE

said, he was prepared to assent to the Amendment with a slight verbal alteration, leaving out the word "conveyance," so as to bring it into harmony with the rest of the Bill, which only mentioned "instrument or writing."

Amendment agreed to.

Clause agreed to.

Clauses 23 to 26 agreed to.

Clause 27 (Fees of conquest abolished).

MR. GORDON

moved to omit the clause, the effect of which, he said, would be to centre the whole property in one.

MR. M'LAREN

said, he was decidedly opposed to this clause, which he considered was against the present policy of Parliament. As he understood this clause, if the middle one of three brothers died intestate, the property would go to the elder brother. He was in favour of division of property, and not of cumulating property, and therefore he objected to this clause.

THE LORD ADVOCATE

said, the hon. Member for Edinburgh, not being a lawyer, had overlooked one thing well known to the forensic profession—namely, that it was the eldest son who succeeded to his father's estate and his heritage. There was no distinction with respect to fees of heritage excepting in the succession of a younger son who had not succeeded to his father's estate, and who had a living elder brother. That was the case where the distinction operated. The younger son had succeeded to nothing. It affected a case like this, where a brother, who had a younger and an elder brother still living, and who might have acquired a considerable estate, died. His property, according to the present law would not go to his younger brother, but to his elder brother, who had succeeded to the family estate, and thus the property tended to increase and concentrate in one individual, and not to divide the inheritance. But he objected to the law as it stood; because it was a capricious and unsatisfactory thing to have two modes of legal succession, and to have to inquire in determining who the feuar was, whether the deceased's property was the product of his own industry, or whether he succeeded to it as heir, giving him one succession in the one case and another succession in the other. But so far as the proposed law would operate, it would be exactly the reverse of that supposed by the hon. Member for Edinburgh.

Clause agreed to.

Clauses 28 to 40 agreed to, with Amendments.

Clause 41 (Certain offices abolished).

On Clause 41, which abolished the offices of Sheriff of Chancery, Sheriff-Clerk, Sheriff-Clerk-Depute, and Macer, of Chancery, and of Presenter of Signatures, and of Clerk to the Presenter of Signatures, and enabled the Commissioners of the Treasury to award full compensation, payable out of moneys voted by Parliament,

THE LORD ADVOCATE

moved, in line 42, after "Treasury," to leave out to end of clause, and insert— Who shall be empowered to award to each of such officers such compensation as the said Commissioners of Her Majesty's Treasury may deem just and reasonable, having regard to the terms by which such officers respectively hold their appointments, and to the net average amount of the emoluments received by them, and such compensation as may be awarded shall be subject to the provisions of the 20th section of the Act of the 4th and 5th years of the reign of His Majesty King William the Fourth, chapter 24, entitled 'An Act to alter, amend, and consolidate the laws for regulating the pensions, compensations, and allowances to be made to persons in respect of their having held civil offices in His Majesty's service.'

MR. WEST

feared, in regard to the question of compensation, that the effect of it would be, where given to men in early life, that they would be tempted to remain idle during the remainder of their years. He thought compensation should be given contingent on their being willing to accept certain offices, on the appointment to which the compensation should cease.

Mr. TREVELYAN

proposed to insert after the words "such compensation," "not exceeding two-thirds of the salary or net emoluments of their respective offices." He denied that the gentlemen who performed the duties of these offices had fulfilled public services to which public pensions were granted. It was quite evident that some of these gentlemen would be superannuated in a time of life in which they could assist themselves by taking business of another description. It was well known there had been gentlemen performing official duties in Edinburgh who had assisted themselves by their pens to a considerable extent. The largest income ever gained by a literary man was gained under these circumstances.

Amendment proposed to the said proposed Amendment, after the first word "compensation," to insert the words "not exceeding two-thirds of the net average emoluments of their respective offices."—(Mr. Trevelyan.)

MR. CRAUFURD

thought the matter might be safely left to the Treasury, who were never very lavish. Scotland paid more than Ireland, and it only got one-fourth of what Ireland got. He was not saying that what Ireland got was right or wrong; but he thought they should think a bit before they tried to cut the compensation down. He referred the hon. Member to the Camperdown Commission, and he asked him after that was he prepared to starve their public officers, who did their work marvellously well? He certainly did not think the Treasury, if let alone, would be guilty of any extravagance.

THE LORD ADVOCATE

objected to be bound by any limits, and hoped the Amendment would not be pressed.

MR. MUNTZ

thought the allowance of two-thirds sufficient, and believed the hon. Member (Mr. Trevelyan) was right in pressing for a division.

MR. ANDERSON

agreed that public servants ought to be paid well, and also agreed that many public servants were not well paid; but this was a question of compensation for the abolition of offices, and came within a totally different category. The principle of allowing two-thirds compensation was a very wholesome one indeed, and he trusted his hon. Friend would press his Amendment.

MR. GORDON

said, he knew that Scotch office-holders had considerable reason to complain of the way they were paid, and thought that in justice to Scotland there should be a reconsideration of such matters. He did not put his support of the Lord Advocate's Motion on such a ground, but he believed that in the abolition of offices there should be a considerable amount of discretion given to the Treasury.

MR. CRAUFURD

said, it was clearly admitted many officers were underpaid, but this clause did not limit the Treasury in giving what they thought right as compensation.

Question put, "That those words be inserted in the proposed Amendment."

The Committee divided:—Ayes 25; Noes 80: Majority 55.

Remaining clauses, and Schedules, amended, and agreed to.

Bill reported; as amended, to be considered upon Thursday 5th June, and to be printed. [Bill 178.]