§ [FOURTH NIGHT.]
§ Bill considered in Committee.
§ (In the Committee.)
§ Charge of Tenant's Compensation.
§ Clause 23 (Power of landlord on paying compensation to obtain charge).
§ GENERAL SIR GEORGE BALFOURsaid, he wished to move to leave out from "or," in page 7, line 31, to "Act," in line 33. It appeared to him that these words should be omitted; but he would leave the matter to the Lord Advocate, without any lengthened observations.
Amendment proposed, in page 7, line 31, to leave out from the word "or" to "Act," in line 33.—(General Sir George Balfour.)
Question proposed, "That the words proposed to be left out stand part of the Clause."
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, it appeared to him that the words in the Act were necessary, because the Bill provided not only for the compensation ascertained in the manner specified in it, but also for equivalent or substituted compensation. For instance, there might be an arrangement in the case of drainage; and he was afraid the Bill would be defective if it did not allow a charge to be made by the landlord in respect of such substituted as well as in respect to statutory compensation.
§ GENERAL SIR GEORGE BALFOURsaid, that if a question of drafting was involved he should be bound to give way. He begged to withdraw his Amendment.
Amendment, by leave, withdrawn.
§ SIR ALEXANDER GORDONsaid, he desired to propose that after the word "Act," in line 33, they should insert "or on his defraying himself the cost of improvements proposed to be executed by the tenant." This Amendment had been adopted by Her Majesty's Government in the English Bill; therefore, he hoped it would be adopted in the Scotch Bill.
Amendment proposed,
In page 7, line 33, after the word "Act," to insert the words "or on his defraying himself the cost of improvements proposed to be executed by the tenant."—(Sir Alexander Gordon.)Question proposed, "That those words be there inserted."
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, that, as he understood, in the English Bill the question was limited to drainage, and was not general. Seeing that the landlord was forced to do a thing, as an alternative for the tenant doing it, he should have the same right to charge as if the tenant had done it, and claimed and been awarded compensation. He (the Lord Advocate) thought the principle of the Amendment just, and would accept it; but it might be necessary to amend the words on Report.
Amendment agreed to.
§ SIR HERBERT MAXWELLsaid, the next Amendment was in his name—namely, to leave out the words "the holding," in line 34, and to insert "his estate." The object of the Amendment was to provide that the area of charge should be the estate.
1232 Amendment proposed, in page 7, line 34, to leave out the words "the holding," and insert the words "his estate."—(Sir Herbert Maxwell.)
Question proposed, "That the words proposed to be left out stand part of the Clause."
§ MR. COCHRAN-PATRICKsaid, he was in favour of the Amendment.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, if the hon. and gallant Baronet did not object, he should prefer the Amendment which stood next on the Paper in his own name, which was to insert, after the word "holding," the words "or the estate of which it forms part." The Amendment of the hon. and gallant Baronet would leave no option. There might be inconveniences in charging a particular holding; but, at the same time, in other cases it might be a convenient thing; therefore, it was only right to give the landlord an option.
§ SIR HERBERT MAXWELLasked whether, in the case of an entailed estate, it was possible to charge any particular part?
§ SIR HERBERT MAXWELLsaid, that, with all due deference, he considered that his Amendment was the best. The right hon. and learned Gentleman's Amendment did not seem to meet the case where a single holding formed an entire estate.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, it was to meet that case that they gave the option.
Amendment negatived.
Amendment proposed,
In page 7, line 34, after the word "holding," to insert the words "or the estate of which it forms part."—(The Lord Advocate.)Amendment agreed to.
§ GENERAL SIR GEORGE BALFOURsaid, the next Amendment would render the clause more definite.
Amendment proposed,
In page 7, line 34, after the word "thereof," to insert the words "and the tenant shall pay such interest as provided by this Act along with his rent to the landlord, who shall be responsible for the interest to the bondholder."—(General Sir George Balfour.)Question proposed, "That those words be there inserted.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, that, even assuming that the Amendment of the hon. and gallant Baronet was appropriate in substance, it would be scarcely appropriate to introduce it here. It would introduce a third party. Any arrangement as to interest should be an arrangement between the landlord and tenant himself.
Amendment, by leave, withdrawn.
§ SIR HERBERT MAXWELLsaid, he wished to move to omit the following words from the clause:—
Or, if the landlord be himself a tenant of a holding, by executing and duly intimating an assignation of the lease in security and for repayment of the amount paid, or any part thereof, with such interest and by such instalments, as the sheriff may think fit. But, where the landlord obtaining the charge is not absolute owner of the holding for his own benefit, no instalment or interest shall be made payable after the time when the improvement in respect whereof compensation is paid will, where an award has been made, be taken to have been exhausted according to the declaration of the award, and in any other ease after the time when any such improvement will, in the opinion of the sheriff, after hearing such evidence (if any) as it thinks expedient, have become exhausted.He could not help thinking that the clause would be equally workable without the part he proposed to leave out. If they were to have a practical construction put upon these words, it would be found difficult to say when an improvement would be exhausted. How was any authority to decide how long the advantage to the tenant would last? And he presumed it was intended to fix the rate of interest for repayment of the outlay in proportion to the duration of the agreement. The greatest possible difficulty would be found in working the provision he wished to omit.Amendment proposed, in page 8, line 1, to leave out all the words after "fit," to "exhausted," in line 14.—(Sir Herbert Maxwell.)
Question proposed, "That the words proposed to be left out stand part of the Clause."
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he was quite sensible that there was a certain degree of difficulty and perplexity in this matter; but he was afraid that unless the provisions to which the Amendment applied, or something equivalent were introduced, 1234 the Bill would fail of effect in very many cases. In the first place, as to the provision at the top of page 8, it was intended to meet a case of this kind—the object of the Bill was to give the tenant, who was the actual possessor and cultivator of the ground, the rights specified in the Bill generally. The tenant might either be the holder under the landlord or a sub-tenant; and if there was no provision as to what was to be done between the tenant and the sub-tenant, there would be either a failure to apply the Bill to the case of a sub-tenant, or an injustice to the principal tenant, if they did not provide that he might charge his interest in the same way as the owner might charge his. It was to meet such a case that the provision at the top of page 8 was inserted. The provision which said—
If the landlord be himself a tenant of a holding, by executing and duly intimating an assignation of the lease"—in the only way he could by the law of Scotland—in security and for repayment of the amount paid, or any part thereof, with such interest and by such instalments, as the sheriff may think fit.He would point out that the Interpretation Clause—Clause 37—contained the definition—Landlord' in relation to a holding means any person for the time being entitled to receive the rents and profits of or to take possession of any holding.So that it was essential, in order to give the benefits of the Bill to those who were the actual possessors, to confer on the principal tenant the same rights that the landlord would have, of not being obliged to pay compensation without charging his interest in the holding. That was the meaning of the first part of the clause. The other was to meet this difficulty. It was quite plain it would not do to allow charges in respect of improvements, which were, more or less, wasting improvements—some of them comparatively transient—to become permanent burdens on the estate, otherwise the estate might, in course of time, become overwhelmed with debt. For example, if, at the end of a 19 years' lease, charges for tenants' improvements were put on the estate, and at the end of the next 19 years' lease there were a fresh set of charges put upon it, and so on, the estate would be over-burdened, whilst the improve- 1235 ments for which compensation had been originally given would have become exhausted. The hon. and gallant Baronet, he thought, would see that it was quite essential to take safeguards that there should be a disappearance of the charges reasonably coincident with the exhaustion of the improvements. He ventured to think that that object was as well carried out as it could be. If any hon. Member could suggest a better method the Government would be glad to adopt it. In the first place, what they provided was for the case where the landlord was not absolute owner. Where he was absolute owner he could do with the estate as he pleased. The clause said—But where the landlord obtaining the charge is not absolute owner of the holding for his own benefit, no instalment or interest shall be made payable after the time when the improvement in respect whereof compensation is paid will, where an award has been made, be taken to have been exhausted according to the declaration of the award.That was to say, where compensation had been settled by an award, and the award had declared the duration of an improvement, there was no difficulty in taking that and making the charge coincident with the duration. But, lest there should be an award pronounced which did not declare the duration of the improvement, they provided—And in any other case after the time when any such improvement will in the opinion of the sheriff, after hearing such evidence (if any) as it thinks expedient, have become exhausted.They provided two means of defining the duration or life of the improvement from which, as they thought, ought to follow the duration or life of the charge. These two means were quite simple, and he thought the hon. and gallant Baronet would see that, without some such mechanism as that, there would be an imperfection in the Bill, and a great injustice to limited owners.
MR. PRESTON BRUCEsaid, he thought that if the latter part of the words the hon. and gallant Baronet wished to leave out were omitted the clause would be rather difficult to work. As regarded the first part, he (Mr. Preston Bruce) had proposed to omit the words from "or," to "fit," in line 5, because they appeared to him very obscure; but after the Lord Advocate's explanation he could quite conceive that they might be necessary in some cases— 1236 for instance, where the tenant held his farm from a proprietor whose interest was a long lease of, say, 999 years. He would suggest to the Lord Advocate whether it would not be possible to make the wording of the paragraph rather more clear, for what was apparently intended was that where the landlord's interest was a leasehold interest he should be able to create a charge by assignation. That idea, it occurred to him (Mr. Preston Bruce), might be more clearly expressed, and perhaps the Lord Advocate would consider the point before the Report.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he should be glad to consider whether the wording could be improved.
§ MR. ANDERSONsaid, he had not understood the bearing of the clause; but, after the explanation of the Lord Advocate, he considered it necessary to retain it. At the same time, he believed it could be rendered a little more clear. One of the points on which it was not very clear was this—that it put the sheriff in the neuter gender in line 13. The words were—
In the opinion of the sheriff, after hearing such evidence (if any) as it thinks expedient," &c.That error, at least, ought to be corrected.
§ SIR HERBERT MAXWELLsaid, that one of the peculiarities of the Bill was that it provided, wherever a question arose which neither the common sense, nor the experience, nor the second sight of anyone else was able to decide, a Deus ex machina in the form of a sheriff should be invoked to solve the problem. There existed already sufficient machinery in the Court of Session to enable limited owners to charge their property for what were permanent improvements. However, he should not press the Amendment.
Amendment, by leave, withdrawn.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)explained that they were desirous that charges under the Bill should be made in the simplest and least expensive form possible; therefore they preferred to have recourse to the sheriff rather than to the procedure under the Entail Acts. he thought it would be found really necessary to proceed as they proposed here.
§ SIR ALEXANDER GORDONsaid, he wished to move, in page 8, line 5, after "fit," to add—
Provided that the whole repayment shall be made, and the charge on the holding removed, within twenty-five years from the date of the order, and that such charge by the sheriff shall be a first charge on the holding, having priority over every other then existing and future charge and incumbrance affecting such holding, except any previous charge under this Act, or under the Improvement of Lands Act of 1864.He thought it undesirable that these charges should remain, as they sometimes did, upon the land for half a century or more. The late Lord Advocate (Mr. M'Laren) had more than once expressed the opinion that the charge should be wiped out in 25 years. If the Bill was intended to be a really effective measure it was absolutely necessary that the charge on the holding should have priority, otherwise there would be no margin for other mortgages upon which money could be raised. As he understood it, the principle he desired to recognize by the Amendment had already been adopted by the Government in regard to drainage in Clause 4. The right hon. and learned Gentleman had consented that the charge for drainage should be wiped out in 25 years. ["No!"] Well, at any rate, an Amendment to that effect had been proposed and discussed. His impression, certainly, was that the Government accepted it, and the House would have to remain in a state of uncertainty until they saw how the Bill was printed. If this Amendment were adopted it would only be carrying out the same principle as was adopted in the Bill of 1864, and would make the clause a reality instead of a sham.Amendment proposed,
In page 8, line 5, after the word "fit," to insert the words — "Provided that the whole repayment shall be made, and the charge on the holding removed, within twenty-five years from the date of the order, and that such charge by the sheriff shall be a first charge on the holding, having priority over every other then existing and future charge and incumbrance affecting such holding, except any previous charge under this Act, or under the Improvement of Lands Act of 1864."—(Sir Alexander Gordon.)Question proposed, "That those words be there inserted."
§ MR. WEBSTERsaid, he would call the attention of the Committee to the 1238 Proviso at the end of the clause, with the hope of inducing the Lord Advocate to reconsider its wording. It appeared to him extremely obscure, and such as would prevent money being advanced on the securities which it proposed. He might refer to the observations on this Proviso in the well-considered Report of the Writers to the Signet. They said of it—
This Proviso appears to be quite unworkable, and it would be quite impossible to charge the estate satisfactorily under it.He feared there was ground for this objection, and it would be a great pity if the beneficial objects of the Bill were defeated by imperfect wording. It was the rule of Scotch law that to make an heritable—that was, a real—security effectual on land, the amount secured or remaining a burden at the time must be perfectly definite, as well as the term of payment, on the face of the registered deed constituting the security. This did not appear to be adequately provided for in the Bill. He did not move an Amendment, because he had no wish to interfere with the carrying through of the Bill as quickly as possible; but he submitted the question to the consideration of the Law Officers of the Crown.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he was afraid he could not assent to the Amendment of the hon. and gallant Member. The first part of it provided for the repayment of the money within 25 years, which might apply either to the case of a fee-simple or the case of an entail. With regard to the former, it was not necessary, and might involve an interference of a kind not very reasonable on the part of Parliament. It would not be reasonable to dictate to fee-simple owners what charge they should put upon their estates. It would be an entire novelty to say to a fee-simple owner —"You shall not do as you like with your property—you shall not allow the tenant's charge for compensation to remain on it more than 25 years." That was the answer, so far as the case of the fee-simple was concerned; but, so far as the case of the limited or entailed proprietor was concerned, he submitted that the Amendment was not so good as the provisions of the Bill. They had not taken an arbitrary period of 25 years, but had provided that the dura- 1239 tion of the charge should, by the terms of the instruments, be made to coincide with the exhaustion of the improvements. That accomplished what his hon. and gallant Friend proposed, and did so in a much better way, having regard to different kinds of improvements. Some improvements might last only a very few years, whilst others might last 25 years; therefore they said—"Make the charge coincide with the survival of the improvement." The next part of the Amendment seemed to him to involve a very serious proposal indeed. It was, that this charge for tenants' compensation should be a first charge—
Having priority over every other then existing and future charge and incumbrance affecting such holding, except any previous charge under this Act, or under the Improvement of Lands Act of 1864.He should strongly object to putting the charge in front of bonds which had been granted to people who had lent money on the security of the estate. It should come in as a charge after those bends were satisfied, or it would be unfair to the bondholders, and would make the security to a greater or less extent valueless. The hon. and gallant Gentleman said there were estates on which the course he recommended was followed in regard, though not exclusively, to drainage works, and no doubt he was right. These estates, however, were of an exceptional kind, and exceptional arrangements were made for payment in respect of these works. No one suffered in this case, for the works were executed under the eye of the Government Inspector, and there were a great many safeguards provided. He submitted that it would not be right to apply that which was adopted in exceptional cases to improvements of all kinds. With regard to what had fallen from the hon. Gentleman the Member for Aberdeen (Mr. Webster), he had correctly stated the law in regard to the security of the landlord's rights and the method of making that security effectual; and he (the Lord Advocate) had quite recognized that in framing the clause. He should be glad to confer with the hon. Member, and if the hon. Member could suggest a better way of carrying out their object the Government would be glad to accept his suggestion, and bring it forward on Report. The Report of the Writers to the Signet must have been 1240 written under some misapprehension as to the object and effect of the latter part of the clause. The clause said that no instalment should be made payable after the time of the exhaustion of the improvement, which, of course, meant after the term specified in the instrument constituting the charge. He hoped his hon. Friend would see that that would satisfy everything which was essential.
§ MR. A. J. BALFOURsaid, he could not imagine a proposal more cruel to the landlord, or more unjust to the mortgagees, than that proposed. In Scotland, as everyone knew, they had an admirable system of borrowing and of land security. That system would be shattered to its foundation if the proposal of the hon. and gallant Gentleman were carried out. The result of it would be that people who had money invested would find their security greatly diminished, and landlords who wanted to borrow in future would find that they would have to pay higher interest than at present. As to the proposal that everything should be paid off in 25 years, it had been, he thought, conclusively shown by the Lord Advocate that it would operate in exactly the opposite sense to what was intended by the hon. and gallant Member, which was to prevent certain estates being burdened longer than necessary.
§ MR. RAMSAYsaid, it occurred to him that the language of the Bill might be made rather plainer as to the power of the sheriff to fix the time when the improvement should be regarded as exhausted. The sheriff had to fix the time; but there was no provision in the measure making it obligatory on him to determine the period at which the improvement should be held to be exhausted. It would be desirable, if the right hon. and learned Gentleman felt it could be done without altering the scope of the clause, to insert a provision requiring the sheriff to determine the period. He felt that there was great objection to the Amendment proposed, as it would prevent a proprietor from borrowing on any terms. The Amendment would have the effect of inducing persons who held bends to call upon those to whom they had lent money to pay up. Generally, that would not be a great evil; but, at the present time, when estates would not sell, if lands were to be mortgaged at all it would 1241 be desirable to give the mortgagees the power they possessed at the present time.
§ GENERAL SIR GEORGE BALFOURsaid, he was glad the bad wording of the Bill had been noticed. He would suggest that bends should be paid off by a system of annuity, the amount to depend on the number of years to run. He should be glad to confer with the Lord Advocate to draw up an Amendment in this sense if the right hon. and learned Gentleman thought it desirable.
§ MR. WEBSTERexpressed himself satisfied with the statement of the Lord Advocate, with whom he should be glad to confer. His desire was to make the securities marketable according to Scotch law.
Amendment, by leave, withdrawn.
§ SIR ALEXANDER GORDONsaid, the chief difference between the present Bill and the Act of 1875 was that improvements here were not to be held to be exhausted until they were really exhausted; whereas the Act of 1875 contained a limitation of this provision. A time was named beforehand at which the improvements might be declared to have become exhausted.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, undoubtedly the principle of the clause was to enable the actual period of the duration of the improvements to be ascertained as nearly as possible. It was not like the Act of 1875, to take the aggregate amount, and then spread it over a number of years; but the landlord was authorized to make a charge during the time the improvements were still running—that was to say, during the time they were not exhausted.
Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."
§ MR. J. A. CAMPBELLsaid, the clause did not appear to him to be clear or easily understood, and his own impression was that it was unnecessary, because the law already gave power to proprietors, on paying compensation, to charge it on their estates. He gathered from what had fallen from the Lord Advocate that the right hon. and learned Gentleman considered that facilities were given by the clause which were not already to be had under the existing law. 1242 If that were so, he should not move his Amendment; but he could not help saying that the clause appeared, from the conversation which had taken place, to be difficult to understand; and, therefore, it was open to doubt whether they were improving the Bill by retaining it.
§ MR. COCHRAN-PATRICKsaid, he thought the proposal of the Government was to do that which could already be done in a better, more expeditious, and a less expensive way; and he hoped that something would be done to make that perfectly clear. Certainly, if the Bill provided a less expensive and more expeditious way of doing it, it was desirable that the clause should stand.
§ MR. RAMSAYsaid, he had no wish to provide facilities for mortgaging estates; but he thought that if obligations were placed upon a proprietor of the nature provided by the Act, it was desirable that he should have facilities for borrowing money in the cheapest manner. That, he thought, was the only benefit which could accrue from the provision introduced into the Bill; but as the Lord Advocate proposed to consider the matter before the Report stage, it would be, perhaps, better to defer the discussion upon the matter.
§ MR. J. W. BARCLAYunderstood that the facilities given by the clause were to this effect—that the sheriff of the county was to do under the Bill what could only be done at present by an application to the Court of Session. That he understood to be the principle of the increased facilities given; and if that was so, he did not see why the proposal should be objected to.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, there were powers already contained in the Entail Acts to have recourse both in regard to the sheriff and to the Court of Session for having improvement expenditure charged; but they did not apply to wasting or temporary improvements, and the present clause would certainly afford a cheaper mode of dealing with that question, which could not arise under the existing law. There would, in fact, be a double advantage in retaining the clause.
Clause, as amended, agreed to.
Clause 24 (Advance made by a company).
§ GENERAL SIR GEORGE BALFOURsaid, he had placed several Amendments 1243 on the Paper in connection With this clause, and his object in doing so was to enable more capital to be brought His Amendments provided that money might be advanced not only for the improvement of land, but also for the cultivation of and farming of land, and to assist farmers to purchase their holdings, and that the money might be advanced not only by Companies incorporated by Parliament, but by Companies incorporated under the Limited Liability Acts. he had been told by more than one of his constituents that one of the great objects they ought to obtain was the introduction of more capital into the cultivation of land; and his first Amendment was to insert, after the words "any Company now or hereafter incorporated by Parliament," the words "or incorporated under the Limited Liability Acts." Of course, hon. Members were aware that it would cost a considerable sum of money to get a Company specially incorporated; but under the Limited Liability Acts the expense was comparatively small. If that Amendment were passed the next Amendment would follow almost as a matter of course—namely, that such Companies, having power to advance money for the improvement of land, should also be empowered to advance it for the cultivation and farming of land, and to assist farmers to purchase their holdings. He hoped the Lord Advocate would see fit to accept these Amendments. In that event small Societies or Companies might be formed, by means of which, by the payment of a moderate rate of interest, the farmers might be enabled to obtain loans to assist them in acquiring their holdings. He believed it was a fact that wherever a farmer had hitherto been able to obtain funds for the cultivation of his holding very good results had followed; but with the limited capital he had been able to obtain during the last eight or nine years, it had been found impossible to undertake even necessary improvements. Upon these considerations he ventured to recommend these two Amendments for adoption to the Committee.
Amendment proposed, in page 8, line 17, after the word "Parliament," to insert the words "or incorporated under the Limited Liability Acts."—(General Sir George Balfour.)
1244 Question proposed, "That those words be there inserted."
§ SIR JOHN HAYsaid, that upon this clause, and the Amendment proposed by the hon. and gallant Gentleman opposite (Sir George Balfour), he should like to ask the Lord Advocate whether a loan obtained under a sheriff's order would really do away with the expensive process of searching for encumbrances? It certainly appeared to him that that, which was a most expensive course of proceeding, would not be obviated by this clause.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, that any prudent lender, before he advanced his money, would probably make a search; because it was only by making a search that he could say whether there was a sufficient margin to justify the advance. He was afraid that under the Act there was no method by which they could dispense with the necessity of a search.
§ SIR JOHN HAYasked whore, in that case, would be the economy of the process of obtaining a sheriff's order?
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, there would be economy in working out the powers of the Entail Acts. With reference to the Amendments proposed by the hon. and gallant Member for Kincardineshire (Sir George Balfour), he should be prepared to accept the first with respect to Companies incorporated under Limited Liability Acts, which he certainly thought was an improvement. The object of the clause was, as had already been explained, an empowering clause to empower certain classes of Companies to lend money. There was no clause which empowered the owners to borrow, and this clause gave power to certain Companies to lend.. He quite agreed with the hon. and gallant Member that the more widely that power was extended the better it would be for agriculture by bringing more lenders into the market. With regard to the other Amendment proposed by the hon. and gallant Member, he approved of it; but he would suggest to his hon. and gallant Friend whether it would not be better to strike out the latter part of it, which said—"And to assist farmers to purchase their holdings." The words of the second Amendment were directed to define the class of Companies who 1245 were to be the lenders. While it was quite right to provide that, under the Act, Companies having power to advance money for the improvement of land should have the power to lend under the Bill, because that was the object of the Government, and quite germane to the cultivation of the land, he must point out that to assist farmers to purchase their holdings was a very different proposition, altogether distinct from lending money to landlords for the improvement of the land. Certainly, to give power to Companies to lend money to landlords who had been called upon to pay compensation when the Companies had been formed to assist farmers in purchasing their holdings would he giving the Companies powers entirely different from those for which they were constituted; and, therefore, he thought these words had better be struck out. He entertained a strong objection to them; and he thought it was quite clear that they were not consistent with the principle of the Bill, which was simply to empower Companies created to lend money for the improvement of the land to lend money payable in respect of improvements already executed.
§ GENERAL SIR GEORGE BALFOURsaid, the Lord Advocate was quite right in the objection he had raised; but he had thought that what was wanted was that much more land should be held by the farmers themselves than at present. There was no class between the landlords who held large estates and farmers; and it appeared to him that a Company might be so constituted as to be able to advance money to the farmers to convert the holding of a farm into a fee-simple. In that way it would tend to multiply the farming interest, and enable the farmers to retain the land they held as their own. If, however, the Lord Advocate thought the Amendment was objectionable, he would not press the latter part of it.
THE CHAIRMANasked whether there was any objection raised to the insertion of the Amendment respecting Companies incorporated under the Limited Liability Acts?
§ SIR HERBERT MAXWELLsaid, he objected to these words, and he was surprised that his right hon. and learned Friend had not done so also. What was 1246 to prevent an absolute owner from borrowing from any Company?
THE LORD ADVOCATE (Mr. J. B. BALFOUR)pointed out that the clause was not applicable to an owner from his point of view. These Companies were to be constituted for the purpose of lending money for the improvement of land.
§ SIR HERBERT MAXWELLsaid, he did not understand that these Companies would require power under the Act to lend money. What was there to prevent an absolute owner from borrowing from a Company?
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, that if his hon. and gallant Friend would note the language of the clause, he would see that it was—
Any Company now or hereafter incorporated by Parliament, and having power to advance money for the improvement of land.It was a Company with a constitution already defined, and it might be fairly said that the object of borrowing the money must be for the improvement of the land. The idea of lending for an improvement of the land was the primary object of the advancement. The money was to be applied in that way. It might be held, unless the clause were inserted that a Company lending money for that purpose might be going beyond its powers. The object of the clause, therefore, was to empower a Company to go a little beyond the express provisions of the Act by which it was constituted, and to do something similar under the provisions of this Bill, although it might be authorized by the provisions of the Act by which the Company itself was constituted.Amendment agreed to.
§ GENERAL SIR GEORGE BALFOURmoved, after the words "improvement of the land," to insert the words "or for the cultivation and farming of the land." After the suggestion which had been made by the Lord Advocate, he would leave out the last words of the Amendment—namely, "and to assist farmers to purchase their holdings."
Amendment proposed, in page 8, line 18, after the words "improvement of the land," to insert the words "or for the cultivation and farming of land."—(General Sir George Balfour.)
Question proposed, "That those words be there inserted."
§ MR. A. J. BALFOURsaid, he did not quite understand the principle upon which the Lord Advocate had advised the hon. and gallant Member to withdraw the latter part of the Amendment. If the argument was that they ought to increase, as far as possible, the number of Companies willing to lend money with the view of getting money on better terms, then they ought to accept the whole of the Amendment. If, on the other hand, their argument was that they ought only to permit those Companies to lend whose constitution was germane to the object of the Bill, then they ought to exclude the words "for the cultivation and farming of land," because the cultivation and farming of land meant very much the same thing as buying stock, which was a fair illustration. To lend money to a tenant farmer for the purpose of buying stock would be as little germane to the object of the Bill as to enable him to purchase his holding. There was very little difference between the two objects. He entirely agreed with the hon. and gallant Gentleman (Sir George Balfour) that every encouragement should be given to Companies to lend money to the farmers to enable them to buy their holdings. Everyone would desire that the farmers should more and more become the owners of the fee-simple of their land; but he did not admit that what agriculture was at this moment suffering from was a deficiency of capital. What agriculture was suffering from, in Scotland at all events, was not a deficiency in capital, but that farming did not pay, and it did not pay because there had been so many bad seasons; and the higher the farming, and the more capital put into the land, the more disastrous was the effect of bad seasons, and the more aggravated the evil, because there was an increased amount of capital upon which the loss fell. he should not have alluded to that matter, if the hon. and gallant Gentleman had not brought it before the Committee, because it really was not germane to the Amendment. He hoped the Government would either object to the whole Amendment or admit the whole of it. He did not think there was any distinction to be drawn between one part of it and the other.
§ SIR JOHN HAYsaid, he should like to ask the Lord Advocate a question both as to the clause and the Amendment. It 1248 struck him they were trespassing, in an unusual manner, upon the ordinary principles of legislation. He would take, for instance, the Land Improvement Company, or the Land Drainage Company, or any of the Companies which had been constituted under special Acts of Parliament. Were they not, by this legislation, incorporating provisions which would affect these very Companies? He had certainly no special knowledge of the matter; but he remembered very well the legislation which had previously taken place, and he thought it was unusual, without the advice of the English Law Officers of the Crown, to legislate by clauses in a Bill of this kind to an extent which would trench upon old-established Acts of Parliament, under which various existing Companies had already been constituted. He would make that suggestion to the Committee, and he hoped the Lord Advocate would state how an Act specially applied to Scotland was, in an Amendment of this kind, to be made to affect Companies already called into existence by other Acts of Parliament, and established for the purpose of advancing money for other objects.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)wished to explain that this was merely an empowering clause. He quite assented to the view which had been expressed both by his right hon. and gallant Friend (Sir John Hay) and by his hon. Friend the Member for Hertford (Mr. A. J. Balfour), that it would not be consistent with the principle of the Bill to give a power which was beyond the reasonable scope of the powers under which existing Companies had been constituted, but that the powers must be confined to the improvement of land. He took the words "for the improvement of land" to mean for a permanent improvement of the land; and the cultivation and farming of land was not only germane to the object of the Bill, but was almost comprehended under some of the kinds of improvements which were here provided for. There were two kinds of improvements—improvements that wasted in the course of time more or less, and improvements which were permanent, and of an entirely different character; and the Companies referred to were those which, by their constitution, had power to lend for permanent improvements—such, for example, 1249 as drainage. He failed to see that there would be any invasion of the essential principle of a Company's constitution in saying that it might lend such money as it liked for purposes of the description specified in this Bill. Then, as regarded the remarks of the hon. Member for Hertford (Mr. Balfour) with respect to the cultivation of land as distinguished from the purchase of a holding, he must point out that the cultivation and farming of laud were not only germane, but that they were comprehended under some of the improvements specified in the Bill. Take, for instance, the case of manure. Surely the object of that was to make the land more valuable for cultivation; and the cultivation and farming of land must go together as farming operations. At the same time, he did not think they ought to go the length of conferring the power proposed upon Companies established for the purpose of assisting farmers to purchase their holdings; as if they gave such Companies power to lend to landlords for the purposes of this Bill, it would be giving power quite beyond the purpose for which the Companies were constituted.
§ MR. M'LAGANsaid, it struck hint that the effect of this Amendment would be to break down the monopoly of the Scotch banks, and to prevent their lending money for farming purposes. At present the Scotch banks had a monopoly, and abundant facilities were now given by them for lending money for farming purposes. There could be no doubt that the present proposal virtually amounted to giving by Statute powers to Limited Liability Companies which the Scottish banks enjoyed at the present time; and he could not see what security the farmers would have more than if they had borrowed from the Scottish banks. He was one of those who desired to see more capital introduced upon the land, and if the Amendment would have the effect of bringing more capital into Scotland, he should like to see it passed; but he did not think the Amendment would have any effect of that kind.
§ MR. ANDERSONsaid, the argument of the hon. Member for Linlithgow (Mr. M'Lagan) would go a long way with him in favour of the Amendment. He thought it was most desirable that the monopoly of the Scottish banks 1250 should be broken down, and the sooner it was done the better. At the same time, he thought the present Bill would not have very much effect in that direction. It would, however, be an immense advantage to give farmers and owners greater facilities for getting the money they wanted under greater competition. At present there was no competition with the monopoly of the Scottish banks. These banks fixed their rate from week to week in Edinburgh by mutual agreement; and, therefore, the farmers and owners were obliged to pay whatever rate these monopolists in Edinburgh chose to insist upon. He thought, however, that the latter part of the Amendment was not germane to the Bill in any sense whatever.
§ GENERAL SIR GEORGE BALFOURsaid, he had already intimated his intention to withdraw that part of it.
§ MR. ANDERSONsaid, he was glad his hon. and gallant Friend did not intend to press it, for it certainly was not germane to the Bill, and, under the present wording, it would be necessary to form Companies, specified to be both for the purpose of lending money for the improvement of the land, and also for the purpose of assisting farmers to purchase their holdings. Unless a Company was designated as formed for both objects, it would be impossible for it to advance money for the purpose that was not named; and the introduction of that part of the Amendment would give an absolute limitation to the powers of the Company, if it had been promoted nominally for the one purpose and not for the other.
§ SIR EDWARD COLEBROOKEremarked, that, although he was unfavourable to the monopoly of the Scottish banks, he did not think they ought to break that monopoly down indirectly by an Amendment hostilely inserted in an Agricultural Bill. He thought it was very much to be regretted that they were going considerably beyond what he conceived to be the scope of the Bill by introducing this Amendment at all. He deprecated very strongly this mode of legislation. At the same time, he thought it would have very little effect, because those who had credit would not be benefited at all by the Amendment. The view he entertained of the Amendment was that it was altogether of a nugatory character, and that it ought 1251 not, therefore, to be inserted in the Bill.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 25 (Duration of charge).
Amendment proposed, in page 8, line 27, after the word "holding," to insert the words "or the part thereof charged."—(The Lord Advocate.)
Amendment agreed to.
Clause, as amended, agreed to.
Notice of Termination of Tenancy.
Clause 26 (Two years' notice to be given of termination of tenancy).
§ SIR HERBERT MAXWELLsaid, he thought there must have been some uncertainty in the drafting of this clause; and he would, therefore, move to insert, after "lease," the words "concluded after the commencement of this Act."
Amendment proposed, in page 8, line 32, after the word "lease," to insert the words "concluded after the commencement of this Act."—(Sir Herbert Maxwell.)
Question proposed, "That those words be there inserted."
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)said, it certainly was not the intention of the Government to interfere with the arrangements under existing leases. he would submit to the hon. and gallant Baronet that the clause, as it stood, did not effect any material interference with existing leases. This provision merely related to the notice which either party required to give in the event of his intending not to renew the lease. The existing rule was that the landlord might abstain from giving any notice to the tenant that he did not intend to renew the lease until 40 days beyond renewal. If there were two terms of renewal, then the notice would be under the 40 days immediately preceding. He believed there was a general consensus of opinion that that was not a good arrangement, either for the landlord or the tenant; and that it was extremely desirable that both parties should be brought together, for the purpose of deciding whether they were to settle permanently at the end of the lease. The 1252 clause would simply provide that, instead of the 40 days' notice required under the present law, two years' notice should be given before the termination of the lease. There would be no interference with existing contracts, but simply a change in the existing law with regard to a renewal, in the sense of making a new rule.
§ SIR JOHN HAYasked how this would affect a 19 years' lease after 17 years had run?
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)replied, that there was an express provision that the clause should not be applicable to a tenancy which was within two years of its termination.
§ MR. C. S. PARKERsaid, that, as there was that provision, it was evident that it would be in the power of a land, lord, if he wished to protect himself, to give notice at once; and, therefore, it was hardly worth while to have a long discussion on the point.
MR. A. J. B ALFOURsaid, he hardly thought the Solicitor General for Scotland was correct in saying there would be no interference with existing contracts. There was interference with leases standing on the face of the clause—"Notwithstanding the existence of any lease." Everybody would admit that a rational landlord would give notice long beforehand in the interest of good agriculture; but was there any landlord so benighted that he would wait until he was within 40 days of the termination of the lease? If there was not, was it worth while to interfere with leases?
§ MR. J. W. BARCLAYsaid, he hoped the Government would adhere to this portion of the Bill, which, he believed, would confer great advantage on both landlords and tenants. It was unsatisfactory to both parties to have the time run on to within 40 days of the termination before anything was concluded; and he believed this clause would act as a considerable stimulus to landlords and tenants to agree some time before the end of the lease as to what they would do.
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)said, the provision as to 40 days was not in the leases—it was a Common Law right, which would not be interfered with. All that was proposed was to change the 1253 Common Law with regard to notice, and there would be no interference with express covenants.
§ SIR HERBERT MAXWELLsaid, he had listened with the greatest attention to the Solicitor General for Scotland; but he thought the hon. and learned Gentleman had overlooked the first words of the clause namely—"Notwithstanding the existence of any lease." That had nothing to do with the 40 days under the Common Law. The proposal would distinctly interfere with existing leases; and for that reason he objected to it, and should take the sense of the Committee upon it.
§ SIR EDWARD COLEBROOKEsaid, he had been engaged in the hopeless task of trying to get people to make up their minds or their wills. He had had a long experience with farmers, and he had found the greatest difficulty in getting them to make up their minds as to a renewal of leases before the expiration. He agreed with the hon. Member for Forfarshire (Mr. Barclay) that it was very inconvenient that things should go on in that way, but people could not be forced to make up their minds; and the result of this clause would be to compel the practice of giving notice before the time. He did not think the farmers desired that. All through, this matter had been treated as a landlord's matter only; but the proposal was to compel a tenant to give two years' notice, and that he did not wish to do. It would be far better to leave matters as they were, and to let people come to agreements about a year beforehand. Any attempt to make them do otherwise would be objectionable, and he thought this kind of legislation was very puerile.
§ MR. RAMSAYconcurred very much with the hon. Baronet; but he regarded a change of the 40 days to a longer period indispensable. He should approve of a longer period; but in the interest of the tenants, he should not like to have two years specified. One year would, he thought, be better; and in that case there need be no dread of any practical evil resulting from the lengthened period. He had consistently opposed two years; but thought the clause might be adopted with one year substituted.
§ SIR HERBERT MAXWELLrose to Order, and asked whether the hon. 1254 Member was not wandering away from the Amendment, which raised the question whether existing leases should be affected by the clause or not?
§ MR. RAMSAYsaid, he had no desire to detain the Committee with irrelevant remarks; but he wished to show the necessity of having regard to the other part of the clause when dealing with this. He deprecated interference with existing leases; but he thought they were sufficiently protected. He considered a change of practice in itself desirable.
§ SIR ALEXANDER GORDONsaid, the last two speakers had addressed the Committee apparently in the interest of the tenants, and he was certain the tenants did not wish to have a clause providing for two years' notice. But he could assure the Committee that there was not a clause in this Bill which the whole of the tenants in Scotland regarded as so valuable as this clause. They approved of the clause from one end of the country to the other; all tenants' meetings had been of opinion that two years was a most satisfactory term; and he, therefore, hoped the Committee would be very cautious before adopting this Amendment. If there were as many tenant farmers in that House as there were landlords, a very different story would be heard with regard to the question of two years.
§ SIR HERBERT MAXWELLrose to Order, and asked whether his Amendment ought not to be disposed of?
THE CHAIRMANThere is no doubt that that would be more in conformity with Order; but, at the same time, I cannot say that the remarks which have been made are out of Order.
§ MR. M'LAGANsaid, he thought the discussion of this point led up to the other point raised by the Amendment. He had always been in favour of two years' notice. He was not aware that there was such a terrible feeling in favour of it among the tenantry; but the more he considered it, the more he was convinced that it would be for the benefit of the tenants to have this period; and that would be the more necessary now that this Bill was about to be passed, because the landlords and tenants would be brought together, and compelled to make up claims upon each other. With regard to the point raised by the hon. and gallant Baronet oppo- 1255 site (Sir Herbert Maxwell), he had been under the impression that it applied to existing leases, and he was glad to hear that it did not.
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)said, it did not apply to leases of less than three years to run.
§ MR. M'LAGANsaid, there were many leases at the present time in which it was distinctly stated that there should be only one year's notice; and he understood that this clause would be overridden in such cases. He questioned very much whether that was fair. There were many circumstances and conditions in a lease that might have made the landlord and tenant agree to one year's notice; and he thought it would be a pity to reduce that condition. He hoped the Government would not change from two years to one year in the future.
§ COLONEL ALEXANDERsaid, lie had received a good many communications stating that one year would be most desirable. He differed altogether from the hon. and gallant Member for East Aberdeenshire (Sir Alexander Gordon). Many tenants thought 40 days too short, and two years too long. The effect of having two years would be to make the whole of the landlords of Scotland give notice to their tenants whether they intended to part with them or not. Therefore, he hoped one year would be agreed to.
§ MR. RAMSAYsaid, he thought the diversity of opinion on this subject arose very much from the fact that this Bill had been framed exclusively with a view to arable land. For land under cultivation it might be desirable that the landlord should have two year's notice; but the Committee were passing a law which had reference to the whole of Scotland. The hon. and gallant Member (Sir Alexander Gordon) had spoken for the whole of the tenantry of Scotland. He himself was not authorized to speak in the name of the whole of the tenantry of Scotland; but he had had quite as much and quite as long experience as the hon. and gallant Member, and he never heard of one tenant who desired two years' notice. In fact, he had had difficulty in getting tenants to give six months' notice of what they were going to do at the expiration of their leases. To say that the whole of the tenants of Scotland desired a two years' notice, 1256 was as much as to say that the whole of Scotland was under cultivation; but there was not more than one-fifth of the land under cultivation. The Bill had been framed with reference to arable land, and had no reference to that part which was used for grazing purposes only; hence this great diversity of opinion. No doubt, the hon. and gallant Member had spoken of the general feeling in his own district; but the land there was exclusively arable. The proposal before the Committee would be detrimental to, and contrary to, the desires of the tenants of four-fifths of the land. He hoped the Government would not do an injury to that large number of the tenantry of Scotland through the mere theoretical desire of a few of the tenants.
§ MR. A. J. BALFOURappealed to the Committee to decide the very simple question before them, which was a question quite apart from whether the period should be one or two years. The question was whether contracts should be considered sacred or not. In the vote he should give he wished it to be understood that he did not give it in the interest of landlords, but in the interest of the general principle that when a contract had been entered into it should be considered sacred. He did not think the Government had shown any sufficient reason for interfering with existing contracts, and he should support the Amendment.
§ MR. J. W. BARCLAYsaid, leases were not sacred now under the existing law, for the words were—
Notwithstanding it is stipulated in any lease that the tenant shall have forty days' notice;so that really the only alteration was to extend that principle to two years.
§ SIR HERBERT MAXWELLthought the hon. Member was mistaken.
§ SIR ALEXANDER GORDONsaid, he had spoken of tenant farmers' meeting, and he had not spoken for every tenant. He believed he was perfectly correct.
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)said, no doubt the only Question before the Committee was whether Clause 26 should be made applicable to future leases; but he must point out that it was evident, from what had passed, that the general opinion was that the existing rule was not 1257 a salutary rule. It required changing; and he thought it would be better, in the interest of the landlords and tenants, to have a longer period than 40 days. Was it expedient to limit this clause in such a way that the tenants would be divided into two classes—tenants who, having leases, were to have the right to a long notice under the next Amendment; and tenants who, having entered into leases at any time within the last 19 years, would not have this new rule, but would be subject to the old rule of 40 days? The effect of the hon. and gallant Baronet's Amendment would be to deprive every tenant who at present occupied under subsisting leases of the benefit of the new rule, if he entered into these leases. He hoped the Committee would adopt the clause as it stood.
§ MR. A. J. BALFOURsaid, that, under Clause 2, there were certain things for which a tenant could not claim compensation, so that if there was an evil it existed under the present law.
§ SIR HERBERT MAXWELLsaid, he had no objection to the extension of the term of notice within certain limits under the Common Law; but what he wished to secure was, that if an "ish" was stipulated for in an existing lease it should be respected.
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)said, there was no proposal to change the "ish" of existing leases.
§ MR. COCHRAN-PATRICKsaid, that as the Common Law notice of 40 days had been referred to, in point of practice where there was not one in 1,000 cases that notice was required to be given. If the proposed extension, which everyone seemed to think should be adopted, was made, it would be equally a Common Law rule, and would be equally disregarded. That was to say, it would probably involve the necessity of tenants and landlords coming to an arrangement at a somewhat earlier period; and he thought that would be a very great benefit. He agreed with the hon. Baronet (Sir Herbert Maxwell) that there existed great difficulty in getting tenants to make up their minds. That was inconvenient to them and to the landlords, and he believed this clause would, to a great extent, obviate that.
§ MR. MARJORIBANKSsaid, he thought the hon. and gallant Baronet 1258 (Sir Herbert Maxwell) misunderstood the word "ish." It was not the notice, but the term of outgoing stipulated for in the lease.
§ SIR GEORGE CAMPBELLsaid, he had had a great deal of difficulty in understanding what "ish" meant. Though born and bred in Scotland, he had not a remote idea what it was until he saw it in the Bill, and he had only gathered from the context what it was. They would require to call in an expert—Max Müller, or some other person—to tell them what it meant. He was quite patriotic enough to believe that the best form of English was Scotch, and if the Government had used decent Scotch he would not have said a word; but he protested against the introduction of these unintelligible legal forms, and suggested that they should substitute words that would be more easily understood.
Amendment negatived.
§ SIR HERBERT MAXWELLproposed to leave out "two," in line 34, and insert "one." This Amendment raised the question as to the length of the notice to be given of an intention to terminate the tenancy, and he considered that one year was better, for all practical purposes, than two years. As a matter of fact, there was not much in the question of notice; and he had never heard it mentioned as the slightest grievance amongst the farmers. Of course, if they went to farmers and suggested all kinds of things they would get a certain degree of assent. Whether the notice to be given was one or two years, the result of it would be that, whichever was agreed upon, every landlord would give at that period formal notice to quit to every tenant, so that they would not be a bit nearer than they were at present. As there was nothing in the clause to compel landlords to announce to their tenants the conditions upon which the farm was to be re-let, he failed to see what advantage the farmer would get by an extension of the period to two years; but if the alteration were made, in order to stand in a free position the landlord would give the legal notice to quit, which might or might not be enforced, according to the agreement that might be come to between them. That being so, he thought it better that the term should be one rather than two 1259 years; therefore, he moved to substitute the word "one" for the word "two."
Amendment proposed, in page 8, line 34, to leave out the word "two," in order to insert the word "one."—(Sir Herbert Maxwell.)
Question proposed, "That the word 'two' stand part of the Clause."
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)said, the Government could not accept the Amendment. The question had been very carefully considered, to ascertain what term should be substituted for the 40 days' notice at present required, and the Government came to the conclusion that two years was as convenient a term as could be adopted. He quite admitted there was no specific principle upon which the term of two years could be adopted; but any period that was taken must be adopted upon an arbitrary rule. It was a question of degree, and was very much a matter of opinion; still, they held to the belief that, all things considered, two years was the most convenient period. He doubted very much whether that would take place which the hon. and gallant Baronet suggested; and he must confess that he was of opinion that where landlord and tenant were getting on well together the landlord would not be likely to take the extreme step of giving formal notice under the Act, so as to place each other at arm's length. On the contrary, as the two years before the termination of the lease approached, he believed it would be the means of getting landlord and tenant to approach each other; therefore, while he did not base the period of two years on any specific principle, it did not appear to the Government that there was any reason for altering the conclusion they had come to with regard to it.
§ SIR JOHN HAYsaid, it seemed to him that the arrangement which was suggested was not by any means one which would conduce to ill-feeling of any kind. In future, it would be an ordinary practice to give at the right time notice to quit. He confessed he did not agree with his hon. and gallant Friend that one year's notice would be better than two. The fact was, that under the 19 years' system of leases a five years' notice would be requisite if they obtained all they wanted, and if 1260 the cultivation of a farm was to be kept up to a high standard. In his opinion, the clause would have the effect of making a tenant who wished to remain upon the farm ascertain whether he was to be taken on again or not; and if he was a good tenant there was no doubt that the landlord would be glad to retain him. The real difficulty in the matter would be to ascertain whether the tenant himself wished to remain. He hoped the Amendment would not be pressed to a Division.
§ MR. COCHRAN-PATRICKsaid, it was the ordinary practice on well-managed estates to ascertain the views of the tenants three years before the expiration of the lease. Although a two years' notice could not be defended upon any principle, it would have this great advantage over one year's notice—it would enable the two parties to an arrangement to ascertain at an early date what was going to take place. If the matter, therefore, was taken to a Division, he should certainly support the proposal for two years' notice.
§ SIR EDWARD COLEBROOKEsaid, the question of notice was a very important one. He was of opinion that no tenant ought to be allowed to remain on suffrage in a position from which he could be turned out without notice. A lease was an agreement between two parties contracting together for a term of 19 years; and both parties knew that, unless they came to some agreement in the meantime, the tenancy would terminate at the end of the 19th year, and he thought the tenants of Scotland were 'quite sharp enough to understand their position. He believed that landlords would certainly give the formal notice in order to acquaint the tenant with the fact that the tenancy would come to an end in two years unless some agreement was entered into. If no agreement were come to, the tenant would know he could only hold on from six months to six months. In his (Sir Edward Colebrooke's) opinion, it was immaterial whether one or two years was fixed.
§ MR. J. W. BARCLAYconfessed he had considerable difficulty in deciding between one and two years. He wished to point out to the Committee, and to the tenant farmers throughout the country, that tenants were required to give notice as well as landlords. According 1261 to the existing law the tenant was not required to give any notice before he left a farm. It was, however, incumbent upon the landlord to give the 40 days' notice; and it was now proposed to alter the law so as to provide for the tenant giving notice of his intention to leave. As he was desirous that the time should not be too long, and, on the other hand, that it should not be too short, in which notice should be given, he would suggest that the notice should be 18 months, and that, he thought, would cover all the objections they had in view. The 18 months would practically be as long to the farmer as two years, because he would be able to get two crops in the time.
§ MR. DALRYMPLEsaid the hon. Gentleman the Member for Forfarshire (Mr. Barclay) had stated that he had great difficulty in deciding what the length of notice should be, yet he introduced into the matter another element of difficulty by suggesting an intermediate term—namely, that of 18 months. He (Mr. Dalrymple) was surprised at a remark made by the hon. and learned Gentleman the Solicitor General for Scotland a minute or two ago. After his hon. and gallant Friend (Sir Herbert Maxwell) had sufficiently defended the proposal for one year's notice, the Solicitor General for Scotland said the Government had determined upon a two years' notice, although the proposal could not be defended upon any specific principle. The hon. Member for North Ayrshire (Mr. Cochran-Patrick), who also defended the proposal of the Government, admitted that it could not be defended. Allusion had been made to practice in these matters. Practice was one thing and law was another. He thought it would be a fair compromise if one year's notice were fixed. No one maintained that two years' notice would really be used. Some little time ago the Member for East Aberdeenshire (Sir Alexander Gordon), who always spoke for the whole of the farmers of Scotland, said there was a universal feeling in Scotland in favour of a two years' notice.
§ SIR ALEXANDER GORDONsaid, the hon. Gentleman was not in the House when he (Sir Alexander Gordon) corrected that statement; he only spoke of what occurred at meetings of tenant farmers.
§ MR. DALRYMPLEsaid, he only heard the remark made in the speech of the hon. and gallant Gentleman. He (Mr. Dalrymple) had never heard any weight of opinion in favour of the two years' proposal; and, certainly, if his hon. and gallant Friend (Sir Herbert Maxwell) went to a Division, he should follow him into the Lobby.
MR. PRESTON BRUCEsaid, he hoped the Government would reconsider their decision; one year's notice would be found much more practicable and useful than a two years' notice. He did not attach much importance to notice, because he agreed with the hon. Member for Lanarkshire (Sir Edward Colebrooke) that the lease was itself notice when the contract and tenancy was to come to an end. He considered that two years' notice was much more likely to generate into a mere form than one year's notice. If the tenant farmers of Scotland were very much in favour of this clause, as had been alleged, they must labour under some misapprehension. Farmers evidently forgot that the mere receipt of formal notice did nothing; did not really enable them to decide finally whether they were to continue in the farm or not. The point raised by the hon. Member for Forfarshire (Mr. Barclay)—namely, that the obligation would be laid on the tenant as well as the landlord—was an important one. In case the landlord did not give notice, and the tenant forgot to do so, the tenant would be very disgusted to find himself under the necessity of remaining another year in the farm beyond the expiration of the lease. The hon. and learned Gentleman the Solicitor General for Scotland seemed to think that a landlord would hesitate very much to serve this notice, because it would be a hostile act towards the tenant. He (Mr. Preston Bruce) thought that was a mistake. It had always been well understood in Scotland that at the end of a 19 years' lease a thoroughly new bargain was to be entered into.
§ MR. RAMSAYsaid, he hoped the Government would reconsider their decision to adhere to the two years' notice. It might be desirable that there should be two years' notice in the case of arable land; but in respect to grazing land and sheep farms—and four-fifths of the whole area of Scotland consisted of such land—he never heard of an arrangement being made 1263 between landlord and tenant two years previous to the expiration of the lease. He maintained that a two years' notice was not at all applicable to the greater part of Scotland. The obligation on the part of the tenant to give his landlord notice would be regarded by the tenant as a great burden. The expiration of a lease was well known as the time at which a tenant could leave his farm. A landlord would now have to go through the idle form of giving notice two years before the expiration of the lease, and that would be a great disadvantage to the tenant as well as to the landlord.
§ SIR ALEXANDER GORDONsaid, he could not conceive that any landlord who wished to retain a tenant would give even the form of notice. The advantage to the tenant of a two years' notice was, that if he found the landlord was nibbling at the holding, or desirous of giving it to someone else, he would go to the landlord and ask him if the notice to quit was a real one or not. He (Sir Alexander Gordon) thought a two years' notice was better than 18 months; indeed, he was surprised to find the hon. Gentleman the Member for Forfarshire (Mr. Barclay) making that suggestion, considering that the hon. Gentleman had been associated with him for some years in advocating two years' notice. He (Sir Alexander Gordon) hoped the Committee would support the Government in their proposal for two years' notice.
§ MR. MACFARLANEasked whether the yearly tenants were to be left to the mercy of the 40 days' notice? These were the tenants who most needed protection; and he desired to know whether there was any clause in the Bill which extended the period within which they could be turned out?
§ MR. WARTONsaid, he was not so vain as to suppose that any remarks he might make would produce much effect upon the Government; but he could not avoid commenting upon the intense anxiety which Her Majesty's Government always displayed to load even their good Bills with unnecessary matter. They were constantly complaining of their inability to pass many measures; but they either brought in a bad Bill which ought not to be passed at all, or if they happened to bring in a good Bill they loaded it with unnecessary clauses. This 1264 was one of those Bills which was loaded with unnecessary clauses; and he hoped it would afford a lesson to the Government to convince them that the best way of working a Bill in the House of Commons was to propose only such provisions as were absolutely necessary, and not to waste the time of the House by discussing a perfectly absurd provision like this, which required Parliament to tell people by a Statute when their leases came to an end. It was a provision that was worse than absurd, because it was absolutely dangerous, and it tended to-support the dangerous principle introduced by the Irish Land Act.
THE CHAIRMANThe hon. and learned Member for Bridport (Mr. Warton) is going far beyond the Amendment now before the Committee. The Question is the insertion of "one" instead of "two;" and the hon. and learned Member, in discussing the clauses of the Irish Land Act, is entirely irregular.
§ MR. WARTONremarked, that it was very difficult, under the New Rules, to know how far a Member was to go, and the precise point at which he might go astray. Some hon. Members, however, were allowed to go on while others were stopped, and he, unfortunately, was one of those who were not allowed to go on. What he objected to in the clause was a matter of principle—that any notice at all should be given. He strongly contended that no notice was required, because it was a wrong principle to lay down that a lease did not end when it did end; and he had been referring to the Act passed two years ago, in order to show that now-a-days a lease did not end when it did end, because there was something that remained after. With regard to the more immediate and more narrow question—namely, the saving of the ancient custom of Scotland in regard to 40 days' notice, he was anxious, personally, to preserve the ancient customs of any country; but the reason why he preferred one year to two years, was that one year was nearer to no notice at all than two years. He thought the Chairman would now admit that he had very gracefully led up to the point of the Amendment. That Amendment would prescribe a still shorter period, and, therefore, he should support it. He would have preferred six months to 12 months, on the simple principle that it was a shorter notice than the other. It 1265 was a very absurd idea that when a contract was made it should not be kept; and he would ask, in the name of common sense, why a tenant should not have to remember what his lease was, and why these obscurities and absurdities should be introduced by the Government into the Bill? He strongly objected to the principle that, so far as lease-holding tenants were concerned, any notice whatever was necessary; and he voted for one year, instead of two years, because it was nearer no notice at all, and he certainly thought there ought to be none.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he thought the question which had been put by the hon. Member for Hertford (Mr. Balfour) must have been suggested by the fact that he was not very familiar with the customs of Scotland. He (the Lord Advocate) quite understood and completely followed the argument that the lease itself should be the notice of the date at which it terminated. A man saw from his lease that he had to go at the end of 19 years without being subject to notice at all; but in Scotland it had always been the practice to give notice antecedent to the termination of the lease, and the law was in conformity with that practice. It had never been the law or custom in Scotland to treat the lease as a notice. The question, therefore, was what the notice should be. In the primitive days of agriculture a short notice was considered enough; and he believed that it was enough under the conditions which then existed. Even 40 days might at one time have been enough to enable a man to make his arrangements; but there was an unanimous consensus of opinion that 40 days' notice was not enough now to enable a man to make a new arrangement. He admitted that there might be a difference of opinion as to one year or two years; but the Government had chosen two years, in order to give the tenant time to look out for a new farm and make arrangements for going out from his present one. He would also remind the Committee that last year a Bill was discussed and read a second time in which that period was inserted, although the question of duration was really left open.
§ MR. M'LAGANsaid, the question had been asked several times in the course of the discussion what was the 1266 reason for making it two years' notice rather than one; and he would ask why they should make it one year more than six months? The rule in Scotland used to be six months' notice, and it was purely by a mistake that 40 days were introduced. He supported the proposal for two years, and his reason for preferring two years was that it would allow the tenant more time to look about for a now farm. It was well known that at times it was very difficult to get a farm; and if the tenant had only 40 days' notice, he was thrown out of his home and had nowhere else to go to; whereas, if he received two years' notice to quit, he had plenty of time to look about him, and the landlord had also plenty of time to look after a new tenant. An additional reason for giving two years' notice was that under the Bill compensation was to be given for unexhausted improvements, and particularly for manures used during the last years of the lease. No doubt, the valuer would take that into account, and would carefully consider manures which had been used in the second and last year of the lease, giving compensation accordingly. A further reason why there should be a two years' notice was that the incoming tenant was required to give compensation to the outgoing tenant; and if notice were given at the proper time, the landlord and tenant would have more time to settle any dispute themselves, and thus avoid a resort to arbitration. If the landlord gave two years' notice to quit, the tenant would immediately begin to send in his claims, and in a few weeks the whole matter would be settled between the landlord and tenant. That was a strong reason why the tenant should have two years' notice, or, at any rate, a longer notice than one year or six months. With reference to the observations of the hon. and learned Member for Bridport (Mr. Warton), he would point out that it was now becoming a common practice in Scotland, as well as in England, to insert in the lease that there should be four years' notice to quit, in order that the tenant who was going to leave might have ample opportunity of making arrangements. Among the landlords who adopted this practice were the Duke of Richmond and the Earl of Leicester; and not only had the House decided last year that there should be two years' 1267 notice, but in the Entailed Estates Amendment Act the same notice was allowed. An hon. Member was of opinion that this ought not to apply to sheep farms; but the same reason which applied in the case of agricultural farms would apply to sheep farms. The tenant ought to receive compensation for all sheep drains, for liming his land, and for other agricultural improvements; and if a tenant got notice to quit, why should he not have two years in which to look about him, and to obtain compensation for all the improvements he had effected? He hoped he was not mistaken in the opinion he entertained, that the Bill would apply to grazing farms quite as much as to agricultural farms.
§ MR. M'LAGANsaid, that, seeing the Bill would apply to all farms, he sincerely trusted the Government would not recede from the position they had taken up.
§ MR. MACFARLANEsaid, he had listened with great pleasure to the admirable manner in which the Lord Advocate had demolished an argument which he (Mr. Macfarlane) had never brought forward. The Lord Advocate had undoubtedly explained that two years would be a great boon. He (Mr. Macfarlane) did not dispute that fact, and lie had never urged anything at all against two years, or against 10 years. All he wanted to know from the right hon. and learned Gentleman was why the yearly tenants—the crofters, for instance—were excluded from the advantages of the Bill, whilst those who had a 19 years' lease were to receive even more advantage than the Bill already provided? He wanted to know the reason which had induced the Government to exclude those who most needed the benefit? And if he did not get a satisfactory explanation he should move a clause upon another stage of the Bill to carry out his views on the subject.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he thought the hon. Gentleman was hardly correct in saying that yearly tenants, whether crofters or others, were excluded from anything in the Bill. As a matter of fact, they were not. But this provision for two years' notice was one which would be inappropriate to tenancies shorter than two years. It would be almost an absurdity to provide 1268 that a person who occupied a holding from year to year should have two years' notice to quit. It was suggested that 90 days was not long enough, and he had no objection whatever to a longer period in the case of a yearly tenancy; and he would be glad to consider, before the Report, whether in that case there should be a six months' notice.
§ MR. MACFARLANEasked if the hon. and learned Gentleman promised to reconsider the case of yearly tenancies?
THE LORD ADVOCATE (Mr. J. B. BALFOUR)replied in the affirmative.
Question put.
The Committee divided:—Ayes 109; Noes 43: Majority 66. — (Div. List, No. 254.)
§ SIR ALEXANDER GORDONsaid, he wished to amend the clause, in line 35, page 8, by inserting, after the word "other," the words "during the year immediately preceding the last two years of the lease." The object of the Amendment was to give practical effect to the decision they had arrived at, and to provide that notice should be given within three years of the termination of the tenancy. He believed the words he proposed were necessary, because it was sometimes the practice to give notice at the commencement of the lease. Sometimes a landlord gave a tenant a lease saying—"This is your notice to quit—it is a 19 years' lease, and therefore it is a 19 years' notice;" and that was practically an injustice to the tenant. The three years he proposed was only in accordance with that which the Committee had already accepted.
Amendment proposed,
In page 8, line 35, after the word "other," to insert the words "during the year immediately preceding the last two years of the lease."—(Sir Alexander Gordon.)Question proposed, "That those words be there inserted."
§ MR. DALRYMPLEtrusted they would have some expression of opinion from the Government on the subject of this Amendment. They had adopted the principle of two years' notice to quit; and now it was proposed that they should have an extra year's notice, which would make three years. He hoped the Committee would hear from the Government some reason in favour of this proposal, 1269 if they intended to adopt it, or some statement as to what they themselves proposed.
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)said, the clause required that there should be two years' notice to the tenant—that was to say, unless he received notice from the landlord that he was to be removed at the termination of his lease two years before that termination, he should have Common Law right to remain on the holding for another year. The object of the Amendment was that two years' notice to quit should be given during the 12 months immediately preceding the two years included in the notice. Under the clause, as it stood, it might be possible for a landlord to give the tenant notice that he would enter into possession at the end of the two years' lease. He would then be in a position to say that notice had been given prior to the expiration of the two years. He did not think that was the way the Committee would wish the clause to act; in fact, he believed they would wish the notice to be given at a period antecedent to the lapse of the two years. That was what his hon. and gallant Friend proposed.
§ SIR EDWARD COLEBROOKEsaid, he understood the object of the Amendment; but he should like to know what would be the effect if no notice was given in the year preceding the last last two years of the lease? Suppose a landlord gave a tenant notice. After that time what would then happen—that was to say, what would be the effect if within two years of the expiration of the lease notice to quit was given?
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)replied, that notice given within the two years would be too late, just as notice given within the 40 days at present would be insufficient. The result would be that the tenant would be entitled to remain on the tenancy for an additional year, subject to all the covenants of the lease which had expired. Under the clause, as it stood two years would be substituted for 40 days, and the Amendment required that the notice, which in any case must precede the currency of the two years, must be given some time during the 12 months immediately preceding the two years—that was, in the course of the third last year of the lease. He understood his hon. and gallant Friend 1270 proposed this for the purpose of securing that notice should be given during that year, and preventing its being given at any previous part of the lease. It might be given in the first year of the lease; and the landlord might he entitled to say—"You had notice more than two years before the expiration of the lease, therefore I shall be entitled to remove you at the end of the lease."
§ SIR EDWARD COLEBROOKEwished to know whether, if a tenant received notice a fortnight before the expiration of the lease, he would then have another year to run?
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)said, that if the clause were not amended as proposed by his hon. and gallant Friend (Sir Alexander Gordon), the landlord might give the notice at any time during the currency of the lease preceding the commencement of the last two years. It would be too late if he gave it within the two years, just as it would be too late at present if it were given within the 40 days. The notice must be given during the currency of the third last year.
§ SIR ALEXANDER GORDONsaid, a notice given one week before the close of a tenancy would result in the tenant being able to sit for two years longer, because two years would not have expired from the time of the notice and the proposed end of the tenancy.
§ MR. ANDERSONsaid, the object of the Amendment would be better attained by inserting at the commencement of the Amendment the words "not earlier than," in place of the word "during," as the object was to invalidate a notice given earlier than that. He believed that would render the provision clearer.
§ SIR JOHN HAYsaid, he did not see that the Amendment was required at all. No doubt, the practice now would be that in each year a formal notice would be given continuously through the whole course of the 19 years—that would be the ordinary practice in estate management. The factor would be required to call the attention of the tenant to the fact that 18 years hence, 17 years hence, 16 years hence, 15 years hence, and so on, his lease would terminate. The hon. Gentleman the Member for Glasgow (Mr. Anderson) would not contend that it would be against the law for an intimation of this kind to be sent to the tenant; and, although it would not be 1271 binding as a notice, it would give the tenant clearly to understand that he would receive a notice to quit before the last two years of his tenancy which would operate at the expiration of the 19 years. The notice would become a formal and continuous document.
MR. PRESTON BRUCEwould ask the Solicitor General for Scotland what notice would have to be given to a tenant holding under a tacit arrangement after the expiration of his lease? Would lie be entitled to two years' or one year's notice? He understood that a tenant from year to year was only to have one year's notice; but what would be the tacit allocation?
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)said, that when a lease expired without statutory notice being given the position of the tenant would be this. He would continue in his holding in the position of a yearly tenant, the conditions under which he would sit being those of the covenants of the lease. As to the question put by the hon. Gentleman opposite (Mr. Preston Bruce) as to yearly tenancies, the result of a tacit agreement would be that a tenant would be entitled to 40 days' notice as at present.
§ MR. BOLTONtrusted the Lord Advocate would reconsider his decision as to the acceptance of this Amendment.
THE CHAIRMANDoes the hon. and gallant Baronet (Sir Alexander Gordon) retain the words as they are on the Paper?
§ SIR ALEXANDER GORDONreplied in the affirmative. He believed they would be sufficient.
Amendment agreed to.
§ MR. DALRYMPLEsaid, that, in the absence of his hon. Friend the Member for Glasgow University (Mr. J. A. Campbell), he wished to propose to insert, in line 36, the word "may," instead of the word "shall" so that the form and manner of the notice should be optional. He would ask the right hon. and learned Gentleman the Lord Advocate to give careful consideration to this matter.
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)said, it did not appear to him that it would be an improvement to make this change, as the effect of it would be to displace the requirement that the notice should be in the form prescribed by the Sheriffs' 1272 Courts (Scotland) Act, 1853. It was extremely convenient that there should be a well-known form prescribed by Statute in which the notice should be given. The statutory notice was an important step, and it was very desirable that it should be clear and distinct. The Act of 1853 was well known in Scotland.
§ MR. DALRYMPLEsaid, he would not press the Amendment.
Amendment, by leave, withdrawn.
§ MR. J. A. CAMPBELLsaid, he had to move an Amendment to provide that any extension of a lease by the operation of this section should terminate only at the time of year corresponding to the ish originally stipulated for in the lease.
Amendment proposed,
In page 8, line 39, after the word "act," to insert the words "Provided, That any extension of a lease by the operation of this section shall terminate only at a time of year corresponding to the ish originally stipulated for in the lease."—(Mr. J. A. Campbell.)Question proposed, "That those words be there inserted."
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)said, there could be no doubt that a lease which was extended by a failure to give notice ought to come to an end at the same term as the natural termination. But he would suggest that any such provision as this was not necessary. The effect of no notice being given was that the tenant at the expiration of the lease acquired a right to continue in occupation for one year, and he became a yearly tenant thereafter. Under the circumstances, it did not seem necessary to introduce this Proviso. It might, in some instances, be disadvantageous. It would have an effect wider than that which the hon. Member imagined, and would not be necessary to secure what was the proper result.
Amendment, by leave, withdrawn.
§ GENERAL SIR GEORGE BALFOURsaid, he wished to move the insertion, in page 8, line 40, of the following Proviso:—
Provided, when a tenant is in arrear of rent for one year, the landlord shall be entitled to remove him, but only at his term of entry, with forty days' notice by registered letter, and that the portion of the Act of one thousand eight 1273 hundred and eighty, called 'The Hypothec Abolition Act,' authorising eviction on fourteen days' notice be repealed, also the Act of Sederunt by the Court of Session of one thousand seven hundred and fifty-six, anent removing of tenants be abolished, and that this Clause be made applicable to current leases.He knew nothing which had caused more irritation to farmers in Scotland than the mode in which Hypothec was carried out; and he had put this Amendment on the Paper in the hope that some alteration of the law might be arrived at. He might incidentally mention that the Act of Sederunt was passed by the Court of Session, who had no power to do it, although they assumed the right.Amendment proposed,
In page 8, line 40, from "Provided," leave out to end of Clause, and insert—"When a tenant is in arrear of rent for one year, the landlord shall be entitled to remove him, but only at his term of entry, with forty days' notice by registered letter, and that the portion of the Act of one thousand eight hundred and eighty, called 'The Hypothec Abolition Act,' authorising eviction on fourteen days' notice be repealed, also the Act of Sederunt by the Court of Session of one thousand seven hundred and fifty-six, anent removing of tenants be abolished, and that this Clause be made applicable to current leases."—(General Sir George Balfour.)Question proposed, "That the words proposed to be left out stand part of the Clause."
§ MR. J. W. BARCLAYrose to support the Amendment, and said, there was a strong feeling in Scotland upon this subject. It was considered a great hardship amongst the farmers of Scotland that a tenant should be evicted from his farm on receiving 10 or 14 days' notice. Such stringent powers were not necessary for the landlord, and unquestionably the feeling of the farmers in Scotland was very strongly against it. He hoped the Law Officers of the Crown would find a way of getting out of the difficulty; and in securing to the landlord power to recover his holding they should only make that power operative at one of the terms. He believed the Amendment would facilitate settlements between landlords and tenants, and be advantageous in several respects. The abolition of Hypothec in the form in which it was done was not accepted by the farmers of Scotland as any settlement of the question. The Amendment was a technical and legal one; and he 1274 hoped the Law Officers of the Crown would direct their attention to the subject, and see, on Report, if they could not accept these words, whether they could not adopt others to carry out the object of the hon. and gallant Member.
§ DR. FARQUHARSONsaid, there was no question upon which the farmers of the North of Scotland felt more deeply than the question of the desirability of modifying the restrictions which pressed so hardly upon them. In this respect there was a great blot in the Bill; and he hoped the Law Officers of the Crown would find means of modifying these two injurious restrictions.
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)said, that this was, no doubt, a very important Amendment, as it dealt with the right of a landlord to remove his tenant on the non-payment of rent, and the conditions in which that right should be exercised. He was quite aware that it had been stated by hon. Members that this was a matter with regard to which the tenant farmers of Scotland felt very strongly, and it would be extremely desirable that some mode should be found to adjust the footing on which a tenant not paying his rent should be removed in such a way as, on the one hand, not to sacrifice the just rights of the landlord, and, on the other hand, not to sacrifice the just rights of the tenant who had failed to pay. He approached the consideration of this Amendment with all earnestness and desire to find a solution; but he must say that he and his Colleagues found themselves unable to accept the Amendment. It seemed to him to be somewhat more far-reaching than even his hon. and gallant Friend (Sir George Balfour) could, perhaps, have distinctly in view; because, if it were adopted, the result, it appeared to him, would be that, in certain circumstances, the tenant who had failed to pay his rent might continue the occupation of the farm for a period of two years. Now, he was quite sure that the tenant farmers of Scotland did not desire to have any such right as that. He had not heard it advocated by anyone that they should have the right of continuing in possession of their farms, notwithstanding the failure on their part to fulfil their obligation to the landlord of payment of rent. He would state, in a few words, how this Amend- 1275 ment would operate in the way he had suggested. There were, he thought, three leading features in the Amendment. In the first place, to enable the landlord to remove his tenant the tenant must be in arrear of rent for one year. In the second place, the right of removal that the landlord would have could only be exercised subject to the condition of 40 days' notice having been given prior to the period when the removal was to take place; and, in the last place, it was suggested that the Amendment should be applicable to current leases. It might be that the tenant entered on Whit Sunday and failed to pay his rent at Martinmas, and the landlord could take no action then because the rent would not be in arrear for a year. The following Whit Sunday came, and the tenant might still fail to pay his rent. No doubt, then, the first condition of the Amendment arose, for the tenant was in arrear for one year's rent. But then the Amendment provided that the landlord should not be entitled to remove the tenant except at the term of entry and with 40 days' notice prior to that term. He, therefore, could not remove him until the following Whit Sunday, prior to the recurrence of which period he would require to give him 40 days' notice of his intention to remove him. The result would be that two years would have elapsed during which the tenant would have paid no rent at all, and the landlord's hands would be entirely tied in the matter of removing him. He (the Solicitor General for Scotland) felt quite satisfied that the tenant farmers of Scotland did not require any protection of that nature. There was this great reason against its being conceded —namely, that it appeared to him that it would be entirely at variance with the most important principle which was always applicable to all mutual contracts—the principle that non-fulfilment by the one party of his covenant set free the other party; whereas, if the tenant were to be allowed to continue his position, notwithstanding the non-payment of his rent, the position would be this—that while the tenant had failed to fulfil his part of the bargain, the landlord would still be bound to fulfil his. Whilst the landlord was protected by the Law of Hypothec there might be reason for modifying his rights as a party to a mutual contract; 1276 but when the Law of Hypothec was abolished, in his humble judgment, by an Act which had conferred great benefit on the country, then there necessarily accrued to the landlord the ordinary rights of a party to a mutual contract, and in particular the right to take the position of being released from his contract if the opposite party failed to fulfil his part of it. Now, his hon. and gallant Friend, in introducing this Amendment, set up something which indicated an impression in his mind that there still subsisted in Scotland a remnant of the Law of Hypothec. It was quite understood by the Committee that in 1880, when the Law of Hypothec was abolished, there were two limitations — namely, that the Act did not apply to existing leases, and did not apply to agricultural or pasture farms of less than two acres. Therefore, when he spoke of the abolition of the Law of Hypothec, he should be understood to be excepting these two reserved classes of cases. But, subject to these two exceptions, it appeared to him that there no longer remained any portion of the Law of Hypothec in force in Scotland. With regard to the Act of Sederunt, which was frequently spoken of as keeping up the Law of Hypothec, anyone who studied the terms of the measure would be satisfied that it did nothing to extend the Law of Hypothec as a security established by law in favour of the landlord over the goods of the tenant. The Act of Sederunt did not give any such right at all. It prescribed the method by which the tenant who failed to pay his rent was to be removed, and it was a provision in favour of the tenant, because, when he had failed to pay his rent, under the Act of Sedernut he tendered security for his past rent and future rent, and was maintained in his holding, though he had not fulfilled the letter of his obligation. Then, with regard to the Act of 1880, that was nothing in the nature of a security given to the landlord over the goods of the tenant. There was, no doubt, a power in it to enable the landlord to obtain the payment of his rent out of the waygoing crop, or that portion of the rent which accrued over the waygoing crop. That was, in common sense, Hypothec; it was not giving a right over the goods of the tenant, but was a condition attached to the right of the tenant who had been removed, to go back and take away his 1277 waygoing crop. The condition was that the rent of that portion of the land that was producing the waygoing crop should be paid to the landlord out of the crop that was produced. Inconvenience had been found to result from the arrangements that were introduced consequent upon the abolition of the Law of Hypothec in 1880. With reference to the tenant who failed to pay his rent, the landlord at present had the power, upon the failure of the tenant to pay six months' rent, to take steps for his removal, though, of course, they know quite well that the rent was never exacted in practice upon a term of six months. They had carefully considered whether anything could be done to remove the inconvenience which was generally felt throughout the country under the existing arrangement, and it had appeared to the Government that the step most likely to remove that inconvenience, and to do justice to all parties, would be this—on the one hand, not to displace the landlord's right to take steps for the removal of his tenant immediately after the latter had failed to pay his half-years' rent, but that the decree of removal which he should obtain should be limited, so as only to take effect at the next ensuing term. In that way they would be obviating all the inconvenience of the removals in mid-term, and the matter would be put upon such a footing that the interests of the landlord would be protected on the one hand, and justice would be done to the tenant on the other. The hon. Gentleman (Mr. Barclay), in what he had just said, had pointed to some such arrangement as that; and, whilst he could not accept the Amendment of his hon. and gallant Friend, the Government would be happy to consider whether they could not, between now and the Report, bring up a clause which would have some such meaning as he had now sketched, and which would remove the dissatisfaction which existed as to the existing arrangement.
§ GENERAL SIR GEORGE BALFOURsaid, he should like to make one observation in regard to the Solicitor General's explanation. Of course, he could only trust to the Lord Advocate and to the Solicitor General for Scotland to carry out to the full extent the scheme that had been suggested; and the more extensively that was done, the better it would be for the Scotch farmers. Under 1278 the circumstances, he should withdraw his Amendment.
Amendment, by leave, withdrawn.
§ MR. J. W. BARCLAY, who had given Notice of an Amendment to leave out the words "or otherwise," in line 2, page 9, said, he thought it was quite right that notice should be dispensed with in case of bankruptcy; but there were many other cases which ought to be taken into consideration.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he really could not assent to the withdrawal of the words, because the provisions of the Bill were intended to be without prejudice to any other legitimate grounds of removal. There wore many other grounds which were familiar to everybody, and it would not be just to bar them.
Amendment proposed, to leave out from line 3, page 9, the words "entitling the landlord to remove him," in order to insert the words" or other liability to be removed."—(The Lord Advocate.)
Amendment agreed to.
§ SIR JOHN HAYmoved, merely for the purpose of putting it upon record, the omission, after the word "Act," of the words "which have less than two years to run at that date." If the clause finished with the word "Act," it would entirely meet the view he desired to express.
Amendment proposed, in page 9, line 5, after the word "Act," to leave out the words "which have less than two years to run at that date."—(Sir John Hay.)
Question proposed, "That the words proposed to be left out stand part of the Clause."
§ THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)objected to the proposed Amendment as unnecessary.
Amendment negatived.
Clause, as amended, agreed to.
§ Fixtures.
§ Clause 27 (Tenant's property in fixtures, machinery, &c., with the omission of the proviso at the end as to steam engine).
§ MR. J. W. BARCLAY (for Sir ALEXANDER GORDON)moved to leave out from 1279 line 8, page 9, the words "after the commencement of this Act," so as to make the clause applicable to buildings and other fixtures put up by the tenant before as well as after the commencement of the Act. It was surely not too much to ask that the tenantry of Scotland should have the power of removing such fixtures if the landlord did not buy them.
Amendment proposed, in page 9, line 8, to leave out the words "after the commencement of this Act."—(Mr. J. W. Barclay.)
Question proposed, "That the words proposed to be left out stand part of the Clause."
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he appreciated the motive of the Amendment; but he was afraid he could not accept it, because, down to the time when the Bill would come into operation, it was the law, and would remain the law, that anything built on the land of the proprietor became the property of the proprietor. The effect of inserting this Amendment would be to take away from the landlord property which by law had become his own. No doubt, it was an unfortunate state of the law which permitted such buildings to become the property of the landlord; still they must recognize the law as it stood.
Amendment negatived.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)moved, in page 9, line 9, after the word "machinery," to insert the word "fencing."
Amendment agreed to.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)moved, in page 9, line 9, after the word "fixture," to insert the words "or erects any building."
Amendment agreed to.
§ GENERAL SIR GEORGE BALFOURmoved the following Amendment:—
Page 9, line 9, after the word "fixture," to leave out from "for," to "tenant," in line 14, and insert "the same shall remain his property, and if in the opinion of referees appointed under this Act the same shall be considered necessary and suitable for the holding, then compensation shall be paid by the landlord the same as for any other improvement, and from and after the commencement of this Act the feudal law or custom of fixtures shall cease and determine.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said he could not accept the Amendment, and he would explain the grounds of his inability in a sentence. The law in time past had been that the buildings and other fixtures upon the land had become the property of the landlord, and that, no doubt, was unfortunate; but it was now proposed, under this Bill, that for the future they should remain the property of the tenant, and he should be allowed to remove them, if the landlord did not exercise the option, which was given him under this clause, of buying them. It was, therefore, provided by the Bill that for the future the tenant should be allowed to take away his fixtures, or to get money for them from the landlord; and that would seem to put the law into a very fair and equitable condition on both sides. But the present Amendment proposed to go a great deal further than that, by providing that referees should be called in, and if they decided that the fixture or building was suitable for the holding, the landlord should be forced to buy, whether he wanted to do so or not. That was an extreme, and hardly an equitable, course.
§ MR. J.W. BARCLAYsaid, he thought the proposal was thoroughly fair and just; but, as the Government were determined to sanction the confiscation by the landlords of all improvements, he would advise the withdrawal of the Amendment.
§ GENERAL SIR GEORGE BALFOURsaid, he could only stand up and ask for justice between man and man; but, as the Government would not accept his Amendment, he would withdraw it.
Amendment, by leave, withdrawn.
On the Motion of the LORD ADVOCATE, the following Amendments were made:—Page 9, line 11, after "affixed," insert "or erected;" line, 12, after "fixture," insert "or building;" line 13, after "fixture," insert "or building."
§ MR. WARTONproposed to insert the word "such," before "fixture," in line 16.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)accepted the Amendment as an improvement.
Amendments agreed to.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)moved to insert the words "or building," after "fixture," in line 16.
Amendment agreed to.
§ SIR JOHN HAYsuggested that some provision should be made to compel the tenant to take the whole of the fixture or building away when he interfered with it at all; he should not be allowed to leave any ruins behind, or it might lead to great inconvenience.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, the provision satisfied this requirement already. The tenant was to take all away, and not merely a bit, and leave a ruin; and that that was clearly provided for was shown by the fact that the clause declared that the tenant should not do any damage to any other building.
§ GENERAL SIR GEORGE BALFOURsaid, the whole Bill had been drawn in the interests of the landlords, and not in the interests of the tenant farmers.
On the Motion of The LORD ADVOCATE, the following Amendments were made:—Page 9, line 19, after "fixture," insert "or building;" line 20, after "any," insert "other;" line 22, after "fixture," insert "or building."
§ SIR HERBERT MAXWELLmoved' in page 9, line 24, after "removal," to insert the words—
And, failing his doing so, the landlord shall have power to make it good at the expense of the tenant.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he rather thought this matter was already sufficiently provided for, as the tenant was under a statutory obligation to make good the damage; and if he did not do so the landlord would have his remedy in damages, if not in specific performance. However, he would consider the matter.
Amendment, by leave, withdrawn.
§ GENERAL SIR GEORGE BALFOURsaid, he had intended to propose to leave out Sub-section 4; but he should withdraw his intention.
Amendment proposed, in page 9, line 25, after the words "fixture," to insert the words "or building."—(The Lord Advocate.)
Amendment agreed to.
§ SIR HERBERT MAXWELLsaid, he should propose to omit "the notice of removal," in consequence of the foregoing section, and insert "such notice."
Amendment proposed, in page 9, line 28, to leave out the words "the notice of removal," and insert the words "such notice."—(Sir Herbert Maxwell.)
Amendment negatived.
Amendment proposed, in page 9, line 30, after the word "fixture," to insert the words "or building."—(The Lord Advocate.)
Amendment agreed to.
Amendment proposed, in page 9, line 31, after the word "fixture," to insert the words "or building."—(The Lord Advocate.)
Amendment agreed to
§ SIR ALEXANDER GORDONsaid, he had not been called upon to move an Amendment preceding these—namely, to omit Sub-section 5.
THE CHAIRMANI called the Amendment of the hon. and gallant Member. In the meantime, an Amendment has been moved, and the hon. and gallant Member cannot now move to omit the section.
§ SIR ALEXANDER GORDONasked whether it was not competent to him to move to omit a clause after it had been altered?
§ SIR ALEXANDER GORDONsaid, he would, then, move the omission of the whole clause.
THE CHAIRMANI must point out, with regard to this matter, that the occasional errors which arise are due to the way in which Amendments are put on the Paper. It is the duty of an hon. Member, when an Amendment is being moved, to rise and claim a hearing.
Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."
§ SIR ALEXANDER GORDONsaid, he should move to omit the whole clause, in order to bring in what he wished, although he did not object to some parts of the clause. He did not see why a landlord should have the right to claim to purchase a fixture, which was the tenant's property. The tenant was placed in this position—he received or gave 1283 notice to quit his holding two months before the end of the tenancy. Having made up his mind to quit, he might then sell his fixture to a neighbour; but for two months he would have to hold back, until the landlord had decided whether he would buy the fixture. If the property was the tenant's, he did not see why the tenant should not dispose of his property to anyone who would buy it.
§ MR. J. W. BARCLAYsaid, he should not propose to omit the clause altogether; but he wished to draw attention to a serious difficulty which would occur under it. According to the Amendment of the hon. Member opposite, which had been accepted at the beginning of Subsection 5, the landlord might wait until the day when the tenant would quit, before saying whether he would take the fixture or not. That would inflict great hardship on the tenant, and he thought the clause ought to be amended on Report. Sub-section 5 provided that the tenant must give one month's notice, and then the landlord might, "at any time before the expiration," say whether he would take the fixtures or not. That would be exceedingly inconvenient, and a great hardship on the tenant; and he hoped the Committee would consider the point.
§ Amendment, by leave, withdrawn.
§ Clause, as amended, agreed to.
§ Clauses 28 to 30, inclusive, agreed to.
§ General Provisions.
§ Clause 31 (Commencement of Act).
§ Amendment proposed, in page 10, line 34, to leave out the word "January," and insert the word "November."—(General Sir George Balfour.)
§ Question proposed, "That the word 'November' stand part of the Clause."
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, this Bill would make a great change in the law affecting landlords and tenants; and he thought January 1, 1884, was early enough.
§ MR. J. W. BARCLAYpointed out that, if January was adhered to, that would exclude tenants moving in November from getting any compensation under Schedule 3. There was no reason why the Act should not come into operation in November.
Amendment negatived.
1284 Clause agreed to.
Clause 32 (Exception of non-agricultural and small holdings).
Amendment proposed, in page 10, line 39, to leave out the words "or that is of less extent than two acres," and insert the words "or in whole or in part cultivated as a market garden."—(The Lord Advocate.)
Amendment agreed to.
Amendment proposed,
In page 10, line 40, after the word "acres," to add "or to any holding acquired and held by any Railway Company or Companies under; the provisions of any Act of Parliament."—(Mr. Bolton.)Amendment agreed to.Clause, as amended, agreed to.
Clause 33 (Avoidance of agreement inconsistent with Act).
Amendment proposed, in page 11, line 1, after the word "tenant," to insert the words "after the passing of this Act."—(Sir. Herbert Maxwell.)
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he did not think this Amendment necessary. Section 33 was directed to securing the voidance of any agreements inconsistent with the Act.
Amendment, by leave, withdrawn.
Clause agreed to.
Clauses 34 and 35 agreed to.
Clause 36 (Provision as to change of tenancy).
§ SIR HERBERT MAXWELLsaid, he would make one last appeal to the Lord Advocate in the hope that he would accept an Amendment which he would now propose. Unless the right hon. and learned Gentleman wished to deprive the tenants of Scotland of the last benefit of this emasculated Bill, he would accept the Amendment. Surely, if a tenant at the close of a tenancy expressly discharged any claim he had, and acknowledged that he had been satisfied, that should be pleaded as the act of a sane man.
Amendment proposed,
In page 11, line 26, at end, add, "Provided always, That if, at the end of any tenancy, a tenant expressly discharges any claim or part of a claim he has or might have had for compensation under such tenancy, such discharge shall 1285 be effectual, and shall not be void under the thirty-third section of this Act."—(Sir Herbert Maxwell.)Question proposed, "That those words be there added."
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, this Proviso was entirely unnecessary. A discharge was granted to give satisfaction; but there was nothing to prevent the landlord and tenant, when the tenancy was ended, from settling as they best pleased. There were many ways in which the tenant might satisfy compensation; and if the hon. and gallant Baronet would look at Clause 8, he would see it was provided that—
The landlord and the tenant may agree on the amount and mode and time of payment of compensation to be paid to the tenant or to the landlord under this Act.Amendment, by leave, withdrawn.Clause agreed to.
Clause 37 (Interpretation).
§ SIR ALEXANDER GORDONsaid, he wished, in explanation of the clause, to insert, in line 36, after "will," the words "or by tacit relocation."
Amendment proposed, in page 11, line 36, after the word "will," to insert the words "or by tacit relocation."—(Sir Alexander Gordon.)
Question proposed, "That those words be there inserted."
§ MR. WARTONsaid, he did not know whether it was the same in Scotland; but in England the words "at will" meant a tenant in possession before the termination of the tenancy. It would be very curious to have these complicated provisions for compensation for a tenant who might be only a tenant for one year; and he thought the words "or at will" had better be omitted."
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he would agree to their omission.
Amendment, by leave, withdrawn.
Amendment proposed, in page 11, line 36, to leave out the words "or at will."
Amendment agreed to.
Amendment proposed, in page 11, line 36, after the word "year," to insert the words "or by tacit relocation."
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, these words were not 1286 necessary, and he could not accept them.
Amendment, by leave, withdrawn.
Amendment proposed, in page 12, line 13, after the word "holding," to insert the words "and shall include the landlord's known factor." (Sir Alexander Gordon.)
Question proposed, "That those words be there inserted."
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he thought the definition was better as it stood.
Amendment negatived.
§ MR. J. A. CAMPBELLproposed, in page 12, line 15, to leave out the word "includes," and insert the words "may include." He proposed this Amendment for the purpose of introducing, in line 18, the words "wherever this is not inconsistent with covenant, or with the ordinary rules of Law."
Amendment proposed, in page 12, line 15, to leave out the word "includes," and insert the words "may include."—(Mr. J. A. Campbell.)
Question proposed, "That the word 'includes' stand part of the Clause."
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he was afraid the clause would scarcely continuo to be a clause of definition if it were to be altered as the hon. Gentleman proposed. The Amendment was quite unnecessary.
Amendment negatived.
On the Motion of The LORD ADVOCATE, the following Amendments were made:—Page 12, line 19, leave out "parcel," and insert "piece;" line 25, leave out "aggregate or sole;" line 30, add—"Sheriff includes Sheriff Substitute."
Clause, as amended, agreed to.
Clause 38 (Short title of Act) agreed to.
§ (Requisition for appointment of oversman by the sheriff.)
§
Where two referees are appointed, an over—man may be appointed as follows:—If either party on appointing a referee requires by notice in writing to the other that the oversman shall be appointed by the sheriff, then the oversman
1287
and any successor to him shall be appointed, on the application of either party by the sheriff.
§ New Clause brought up, and read the first time.
§ Clause read a second time, and added to the Bill.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)moved to insert the following new Clause after Clause 26:—
(Mortis causa assignment of lease.)A tenant may by will, or other mortis causa writing, assign or bequeath his lease to any person (hereinafter called 'the assignee'), subject to the following provisions:—1288 He had to offer a few words of explanation. As the law now stood, agricultural leases were not assignable. By this clause it was not proposed to alter the law, which provided that such leases were not assignable so long as the ten- ant lived, and that for very obvious reasons. Accordingly, they felt it their duty to resist the Amendment of the hon. Member for Forfarshire (Mr. Barclay) to that effect. In fact, as well as by legal assumption, when a landlord agreed with a tenant he very frequently had regard to the personal qualifications of the tenant. Undoubtedly that element of personal choice often led to a tenant who was approved of getting his holding on very different terms from the mere market price. They did not think it right that the personal choice by the landlord of the particular tenant should be interfered with by Act of Parliament. In the case of the tenant dying, matters wore very different. According to the law of Scotland, the lease descended to the heir. The law was different in England, where the lease descended to the executor or personal representative. He did not suppose it could be said that, in making a 19 years' lease, the landlord had in view the tenant's heir, or the choosing of the tenant's heir. When the tenant died it became necessary that, in some way, the person who was to take the lease after him should be designated. In the ordinary case the law designated the person who was to take by declaring that the lease descended to the heir. They proposed that there should be another mode of designation of the successor, provided that was designation by the tenant himself. The proposal would not invade the principle to which assignment of leases had always hitherto been subjected in Scotland. This was a power very much desired in Scotland; and, he believed, one which would be for the advantage of the landlord as well as the tenant. It often happened that when a tenant died, he would desire to leave the farm to his widow, or a younger son; the heir might be insane or absent, or he might be devoted to other pursuits, and quite unsuited to take the farm. He (the Lord Advocate), therefore, submitted that the exercise of the proposed power would not only be a boon to the family of the deceased person, but an advantage to the land- 1289 lord. This provision was one which would be greatly appreciated by the tenants, and one which would often prevent serious hardship to families.
- (a) The assignee shall intimate the assignation or bequest to the landlord or his known agent within twenty-one days after the death of the tenant, unless he is prevented by some unavoidable cause from making intimation within that time, and in that event he shall make intimation as soon as possible thereafter;
- (b) Intimation to the landlord by the assignee shall import acceptance of the lease by the assignee;
- (c) Within one month after intimation has been made to the landlord he may intimate to the assignee that he objects to receive him as a tenant under the lease; If the landlord makes no such intimation within one month, the lease shall be binding on the landlord and the assignee respectively as landlord and tenant as from the date of the death of the deceased tenant;
- (d) If the landlord intimates that he objects to receive the assignee as tenant under the lease, the assignee may present a petition to the sheriff, praying for decree declaring that he is tenant under the lease as from the date of the death of the deceased tenant, of which petition due notice shall be given to the landlord; and in the event of the assignee proving to the satisfaction of the sheriff that he is possessed of the means and skill requisite for the proper stocking and cultivation of the holding, and for fulfilling any other obligations incumbent on the tenant under the lease, the sheriff shall decree and declare in terms of the prayer of the petition. In the event of the sheriff finding that the assignee has failed to prove that he is possessed of the means and skill requisite for the proper stocking and cultivation of the holding, and for fulfilling any other obligations incumbent upon the tenant under the lease, he shall declare the assignation or bequest null and void.
- (e) The decision of the sheriff under such Petition as aforesaid shall be final.
- (f) Pending any proceedings under this section, the assignee shall have possession of the holding, unless the sheriff shall otherwlse direct on cause shown."
New Clause brought up, and read the first time.
Motion made, and Question proposed, "That the Clause be read a second time."
§ MR. COCHRAN - PATRICKsaid, he hoped the Committee would assent to the clause of the Lord Advocate, because it would be a very great advantage to Scotch tenants. As the right hon. and learned Gentleman had pointed out, the heir-at-law must succeed to the tenancy under the existing state of the law; but it very often happened that the eldest son was engaged in some other occupation. Though he could not practically take up the farm, he must legally take up the lease. Perhaps the second son elected to go on with the farm; and, therefore, it would avoid a great difficulty if the tenant had himself the power to indicate the member of his family to whom the lease and the stock should go. No real disadvantage would result to the landlord, whose interests were, as far as one could judge, perfectly safeguarded by the provision.
§ MR. A. J. BALFOURsaid, he was very much startled when he first saw the clause. It appeared to introduce matters wholly alien to the principles of the Bill. After the speech of the Lord Advocate, he thought that the clause was unobjectionable, but that it would be a very great advantage. In the first place, the clause gave liberty where there was no liberty at present; and, in the next place, it would tend to the interests of agriculture, because it would be a direct inducement to the tenant to leave to his successor the necessary means for the judicious cultivation of the farm. The tenant being left to choose would probably choose someone capable of carrying on the business. He would know, too, that, if he chose a man without means, the landlord would object to him. There would, therefore, be a direct temptation to leave a man the means of carrying on the farm.
§ SIR JOHN HAYconsidered the clause would be very advantageous, and he intended to give it his entire support. He wished, however, to ask a question in reference to it. In many cases the 1290 tenant had a desire to leave the farm to his widow. The form of the clause appeared to exclude the widow.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, that anyone, male or female, might succeed. There was no intention to restrict the tenant in that sense. The masculine gender in an Act of Parliament included the feminine.
§ MR. RAMSAYapproved of the object of the clause; but he had pressed on the right hon. and learned Gentleman the desirability of conferring on the landlord the power of determining a tenancy in the event of his being dissatisfied with the successor to the tenant. The Lord Advocate, however, had been unable to accede to the suggestion, and therefore he (Mr. Ramsay) would not submit any Amendment on the subject.
§ COLONEL ALEXANDERasked what would be the effect of the clause in a case where one of the sons was in the same lease with the father, and where the father died?
THE LORD ADVOCATE (MR. J. B. BALFOUR)said, in that case it was part of the arrangement that the son should take the succession. In such a case, there would be personal choice by the landlord of the son, as well as of the father.
§ COLONEL KING-HARMANsaid, that, supposing an assignee compelled a landlord to go before the sheriff, and the assignee was found to be in the right, upon whom would the costs fall?
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, the usual course in the case of costs would be followed.
Motion agreed to.
Clause read a second time.
Amendment proposed to amend the new Clause, by adding, after "landlord," in line 9, "or his known agent."—(The Lord Advocate.)
Amendment agreed to.
Clause, as amended, added to the Bill.
§ (General saving of rights.)
"Except as in this Act expressed, nothing in this Act shall take away, abridge, or prejudicially affect any power, right, or remedy of a landlord, tenant, or other person vested in or 1291 exercisable by him by virtue of any other Act or Law, or under any custom of the country, or otherwise, in respect of a lease or other contract, or of any improvements, deteriorations, away-going crops, fixtures, tax, rate, teind, rent, or other thing."
§ New Clause brought up, and read the first time.
§ Clause read a second time, and added to the Bill.
§ MR. J. W. BARCLAYmoved the following Clause:—
§ (Assignment and bequest).
§
Every tenant shall be entitled to assign his tenancy to any one person having sufficient means to cultivate the holding, and against whom there is no objection on reasonable grounds, and if any objection is raised it shall be decided by reference as in the case of improvements under this Act: Provided that the landlord may elect to determine the tenancy and to pay compensation in the manner provided by this Act to an outgoing tenant.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he had already explained that the Government could not accept this clause.
Clause negatived.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)proposed to insert, in Part I. of the Schedule, page 13, line 5—
§ "2. Formation of Silos."
§ Amendment agreed to.
1292THE LORD ADVOCATE (Mr. J. B. BALFOUR)proposed, in page 13, line 14, to insert "and sluices against floods."
Amendment agreed to.
§ SIR JOHN HAYproposed, in page 13, line 19, to leave out "Part III." His object in moving this Amendment was that Parts II and III. should be one; that was, that there should only be two Parts of the Schedule. There were some Amendments in Part III. to which the consent of the landlord was not required. Considering that for some others the landlord had to pay, he ought to have some knowledge of them. For instance, it was right a landlord should have an opportunity of testing the value of the manure put on the land. There was bad as well as good manure, and it would be hard for a landlord to have to pay for manure which would not have the desired effect upon the land. It was to meet such cases that he (Sir John Hay) now proposed to omit Part III.
Amendment proposed, in page 13, line 19, to leave out "Part III."—(Sir John Hay.)
Question proposed, "That Part III. stand part of the Schedule."
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he could not accept the Amendment, from considerations which, he was sure, were present to the minds of the Committee. The Amendment was totally at variance with the principle of' the Bill.
Amendment negatived.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)proposed, in page 13, line 22, after the words "claying of," to insert the words "or spreading blaes upon."
Amendment agreed to.
§ MR. J. W. BARCLAYproposed to add to Part III:—
(17.) Drainage executed within five years before the commencement of the Act.He wished to make a last effort to save the tenants of Scotland some part of the improvements they had already executed. He protested against the legalizing of this confiscation of tenants' improvements. The Bill, as it stood, might quite as properly be called a "Bill for legalizing the confiscation of tenants' improvements," as a Bill for compensation of tenants' improvements. The 2nd 1293 clause provided that no compensation should be paid to tenants in respect of improvements made before the passing of the Act; and the tenants of Scotland felt very strongly on this question of drainage executed before the passing of the Act. He should be extremely glad if the Government could see their way to accept his Amendment.Amendment proposed,
In page 13, at the end of the Schedule, to add the words—"Drainage executed within five years before the commencement of the Act."—(Mr. J. W. Barclay.)Question proposed, "That those words be there added."
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, this matter was very fully considered in the early part of the Bill; and the Government had seen no reason to alter the conclusion they had arrived at.
Question put.
The Committee divided:—Ayes 38; Noes 141: Majority 103.—(Div. List, No. 255.)
Schedule agreed to.
Bill reverted; as amended, to be considered To-morrow.