§ Order for Consideration of Lords' Amendments read.
§ Lords' Amendments considered.
§
Page 1, line 12, after "tenant," insert—
Provided always, that in estimating the value of any improvement in the schedule hereto there shall not he taken into account as part of the improvement made by the tenant what is justly due to the inherent capabilities of the soil,
—the first Amendment, read a second time.
THE LORD ADVOCATE (Mr. J. B. BALFOUR),in moving that the House do agree with the Lords in the said Amendment, said, that, although it was not in the Bill when it left that House, a similar Amendment had been inserted in the English Bill, and therefore he could not ask the House to disagree with it, as it would make both Bills accord.
§ Motion made, and Question proposed, "That this House doth agree with the Lords in the said Amendment."—(The Lord Advocate.)
§ SIR ALEXANDER GORDON,in opposing the Motion, said, the Amendment in the English Bill was accepted by the Government with the greatest reluctance; and, when the English Bill was going through Committee, it was not proposed to introduce the Amendment. The Scotch tenant farmers objected to it, and he saw no reason for inserting it. It would lead to a great deal of litigation.
§ MR. SPEAKERI must point out to the hon. and gallant Member (Sir Alexander Gordon) that the Motion before the House is that the House do agree with the Lords in the said Amendment.
§ SIR ALEXANDER GORDONsaid, he wished to move an Amendment to disagree with the Amendment.
§ MR. J. W. BARCLAYsaid, he objected strongly to the proposal; but he supposed the Government would carry it, and he should move to substitute the word "value" for "capabilities" in the last line of the Amendment.
§ Amendment proposed, in line 4 of the said proposed Lords' Amendment, to leave out the word "capabilities" in order to insert the word "value."—(Mr. J. W. Barclay.)
§ Question proposed, "That the word 'capabilities' stand part of the said Amendment."
§ MR. A. J. BALFOURsaid, that proposal was open to the objection that it might be taken to mean prairie value only.
§ GENERAL SIR GEORGE BALFOURsaid, he thought the Amendment absurd, and likely to cause confusion, and he should support the Amendment of the hon. Member for Forfarshire (Mr. J. W. Barclay).
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, the introduction of the word "value," as suggested by the hon. Member for Forfarshire (Mr. J. W. Barclay) would make nonsense of the Amendment. He quite understood what was meant by the inherent capabilities of the soil—those qualities which were there, apart altogether from stimulus, and would have certain efficiency in the way of causing growth; but the introduction of "value" would have no intelligible effect at all. What was "inherent value?" Value was what a thing would sell for.
§ DR. FARQUHARSON,in protesting against the Proviso, said, the different character of agriculture in England and Scotland was sufficient reason for rejecting it. Experienced agriculturists in Scotland had no notion what was meant by the phrase "inherent capabilities of the soil."
§ MR. WADDYsaid, he could not admit that the mere fact that this Proviso was inserted in the English Bill was a reason for accepting it here. If so, they might as well have the two Bills in one. As the overwhelming majority of Scotch Members, and of Scotch farmers, were opposed to the Proviso, he hoped the House would not accept it. If, however, it was accepted, he thought the word "capabilities" should be replaced by "qualities."
§ Question put, and agreed to.
§ Question put, "That this House doth agree with the Lords in the said Amendment."—(The Lord Advocate.)
§ The House divided:—Ayes 96; Noes 41: Majority, 55.—(Div. List, No. 312.)
1583§ Page 1, line 17, after "has," insert "within ten years;" line 18, leave out "made," and insert "executed;" line 24, leave out "the," and insert "this;" line 26, leave out "has," and leave out "the," and insert "this;" line 27, leave out "consented in writing," and insert "declares in writing his consent;" lines 27 and 28, leave out "then in either of such cases," and insert "in either of these cases the tenant;" line 29, leave out "a," and insert "the," and leave out "he;" and in page 2, line 1, leave out "such improvement," and insert "the improvement which he has executed," the next eight Amendments, agreed to.
§
Page 2, line 3, after "improvement," insert—
Provided that no compensation shall be claimed under this section in contravention of any specific agreement existing at the time of the passing of this Act between the parties in reference thereto,
—the next Amendment, read a second time.
§ On the Motion of The LORD Advocate, the said Amendment disagreed to.
§ Page 2, lines 8 and 9, after "previously," insert "to the execution of the improvement and after the passing of this Act;" line 22, leave out "a specification of such," and insert "of the manner in which he proposes to do the intended;" line 23, leave out "and specification;" line 26, leave out "any such," and insert "an," and, after "made," insert "that the improvement is to be executed by the tenant;" and in line 30, after "so," insert "in any reasonable and proper manner which he thinks fit," the next five Amendments, agreed to.
§ Page 2, line 34, after "outlay," insert "in the said period," and leave out "three," and insert "four," the next Amendment, read a second time.
§ On the Motion of The LORD Advocate, the said Amendment disagreed to.
§ Page 2, line 35, leave out "in the said period," and insert "such annual sums to be recoverable as rent;" and in line 38, leave out "of the execution," the next two Amendments, agreed to.
§
Page 2, line 39, after "Act," insert—
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Where in the case of a tenancy under a lease current at the commencement of this Act there is in such lease, or in any relative writing made prior to the passing hereof, an express stipulation limiting the outlay on any improvement specified in the second part of the schedule hereto, the tenant shall have no claim to compensation under this Act for any such improvement in excess of the sum provided for in such stipulation.
The landlord and tenant may, if they think fit, dispense with any notice under this section, and come to an agreement, in terms of the lease or otherwise, between themselves in the same manner and of the same validity as if such notice had been given,
—the next Amendment, read a second time.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, it was impossible for the House to agree to the Amendment, because it would put it in the power of the landlord to make an agreement with a tenant, by which the tenant should surrender his right to compensation under certain circumstances. As the Amendment stood, it dealt with agreements which had been made prior to the commencement of the Act. He should think there were very few of such agreements. It was difficult to say what could have led to such agreements being made in times past, unless for some good and adequate considerations. The Amendment might be amended by striking out the word "commencement," in the second line, and insert "passing." The effect of that would be to limit the Amendment to agreements now in existence. He would move to amend the Amendment in the manner he had suggested.
§ Amendment proposed, to the said proposed Lords' Amendment, to leave out, in line 2, the word "commencement," and insert the word "passing."—(The Lord Advocate.)
§ Question, "That the word 'commencement' stand part of the said Amendment," put, and negatived.
§ Question, "That the word 'passing' be there inserted," put, and agreed to.
§ MR. WADDYsaid, he could not help thinking that the whole provision was very objectionable. It was clear it might be made an engine of great oppression, because they could, by a misuse of the clause, bring back upon the tenant all the mischiefs of contracting himself out of the Act.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)It applies now to agreements made after the passing of the Act.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he would further propose to amend the said Amendment by leaving out, in lines 9 and 10, the words "in terms of the lease or otherwise." The clause, as it originally stood, required to be set in motion by notice. It was thought expedient that a notice should not be requisite, if the parties could agree differently.
Further Amendment proposed, to the said proposed Lords' Amendment, to leave out, in lines 9 and 10, the words "in terms of the lease or otherwise."—(The Lord Advocate.)
§ Question proposed, "That the words in terms of the lease or otherwise,' stand part of the said proposed Amendment."
§ MR. WARTONsaid, the right hon. Gentleman in charge of the English Bill (Mr. Dodson) did not put the exclusion of these words on the same ground as the right hon. and learned Lord Advocate had. The right hon. Gentleman the Chancellor of the Duchy of Lancaster said the words were unnecessary words to introduce in the English Bill, because the word "agreement" included the word "lease." He knew it did so in the ordinary sense, but not generally. People spoke of an agreement as something else than a lease; therefore, by excluding these words, they might do some harm.
§ Question put, and negatived.
§ Lords' Amendment, as amended, agreed to.
§ Page 3, line 11, after "compensation," insert "having regard to the circumstances existing at the time of making such agreement," the next Amendment, agreed to.
§
Page 3, line 14, after "Act," insert—
The last preceding provision of this section relating to a particular agreement shall apply in the case of a tenancy under a lease current at the commencement of this Act in respect of an improvement specified in the third part of the schedule hereto, specific compensation for which is not provided by any agreement in writing or custom,
—the next Amendment, read a second time.
§ Motion made, and Question, "That this House doth disagree with the Lords in the said Amendment,"—(The Lord Advocate,)—put, and agreed to.
§ Page 3, line 15, leave out "estimates of," and insert "compensation for;" line 24, after "husbandry," insert "or according to the terms of any written contract specifying such rules;" and line 33, after "burdens," insert "or interest, moneys payable in respect of drainage, or premiums of insurance," the next three Amendments, agreed to.
§ Page 4, line 4, leave out "four," and insert "seven," the next Amendment, read a second time.
§ Motion made, and Question, "That this House doth disagree with the Lords in the said Amendment,"—(The Lord Advocate,)—put, and agreed to.
§
Page 4, line 8, after "tenancy," insert—
In the ascertainment of the amount of compensation payable to the tenant in respect of manures there shall not be taken into account any larger outlay during the last year of the tenancy than the average amount of the tenant's outlay for like purposes during the three next preceding years of the tenancy, or other less number of years for which the tenancy has endured,
—the next Amendment, read a second time.
§ Motion made, and Question proposed, "That this House doth disagree with the Lords in the said Amendment."—(The Lord Advocate.)
§ SIR JOHN HAYsaid, he had no intention to detain the House; but he desired to enter his protest against the disagreement with this Amendment for the same reason he gave when the English Bill was under discussion.
§ Question put, and agreed to.
§ Page 4, line 8, leave out "two," and insert "six," the next Amendment, read a second time.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he should propose to disagree with the Amendment as it stood. The Amendment related to the period of notice of intended claim that should be given. There were many persons in favour of the view that two months' notice was too short; but, on the other, hand, it appeared to the Government that six months' notice was too long. 1587 Six months' notice would, in many cases, inflict on the tenant the obligation of sending in his notice with required particulars before some of the expenditure in respect of which the claim was made might have been made. He would suggest that four months should be the period fixed upon, because that, upon the whole, would be a very fair period.
§ Amendment proposed, to the said proposed Lords' Amendment, to leave out the word "six," and insert the word "four."—(The Lord Advocate.)
§ Question proposed, "That the word 'six' stand part of the said proposed Amendment."
§ MR. J. W. BARCLAYsaid, the right hon. and learned Lord Advocate had forgotten what took place when the Bill was passing through Committee. In a subsequent part of the clause, it was provided that the tenant must not only state the particulars, but the amount, of his compensation. A tenant, during March and April, would be giving feeding stuff to his cattle, and therefore it would be quite impossible for him to state the amount of his claim. It would, therefore, be unfair to fix the period at four months, though during the summer months there would not be the some objection to four months as during the winter months.
§ SIR ALEXANDER GORDONsaid, they would be making it two years again. The whole of the time the incoming tenant would be uncertain what he would have to pay for compensation.
§ Question, "That the word 'six' stand part of the said proposed Amendment," put, and negatived.
§ Question put, "That the word 'four' be there inserted."
§ The House divided:—Ayes 82; Noes 27: Majority 55.—(Div. List, No. 313.)
§ Amendment, as amended, agreed to.
§ Page 4, line 17, after "particulars," insert "and amount," the next Amendment, read a second time.
§ MR. J. W. BARCLAYsaid, that in consequence of what had taken place on the last Amendment, he hoped this would be disagreed to, because it would 1588 be impossible for the tenant to give a statement of what had taken place. He could not give a statement as to feeding stuff, until that feeding stuff was consumed. They must object to this Amendment, because either the tenant must be forced to put in a hypothetical claim, or deprive himself of the feeding stuff put on the holding during the past four months.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, there was no reason for objecting to the Amendment. The feeding of cattle would go on up to the expiration of the lease, and this provision for giving particulars must, like all such provisions, be subject to the reasonable understanding that they should be given only in so far as they could be given at the time, and that they should be liable to amendment, if necessary, afterwards. The word "particulars" in itself would be enough. That word had been thought proper, and there had been no objection to its going in the Bill. In England, the tenancies were almost invariably yearly, or at will, and, therefore, the period of notice would agree; but it did not follow that the same period of notice was desirable in a 19 years' tenancy. The difference had been recognized in the House. There was no proposal to extend the time in the English Bill; but, for reasons stated in the other House, six months was substituted, and the Government suggested that four months would be enough. There was no reason whatever for leaving out the word "amount" in what had been done.
§ Amendment agreed to.
§ Page 5. line 31, after "any," insert "sample or voucher or other," the next Amendment, agreed to.
§
Page 6, line 25, after "county," insert—
In any case provided for by sections three, four, or five, if compensation is claimed under this Act, such compensation, as under any of those sections, is to be deemed to be substituted for competition under this Act, if and so far as the same can consistently with the terms of the agreement, if any, be ascertained by the referees or the oversman, shall be awarded in respect of any improvements thereby provided for, and the award shall, when necessary, distinguish such improvements, and the amount awarded in respect thereof, and an award given under this section shall be subject to the appeal provided by this Act,
—the next Amendment, read a second time.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he proposed to amend this Amendment, by leaving out the word "under," in line 4, and inserting the words "consistently with."
§ Amendment agreed to; words substituted.
§ Lords' Amendment, as amended, agreed to.
§
Page 7, line 18, after "invalid," insert—
(2.) That the award proceeds wholly or in part upon an improper application of, or upon the omission properly to apply, the special provisions of section five, or any other part of this Act,
—the next Amendment, read a second time.
§ On the Motion of The LORD Advocate, the said Amendment amended, as follows:—leave out the word "section," and insert the words "sections three, four, or;" and leave out "or any other part."
§ Amendment, as amended, agreed to.
§
Page 8, line 42, after "assignees," insert—
Any charge under this section shall rank after all prior charges and burdens heritably secured upon the holding or estate.
Where a holding or estate is charged by the landlord under this section, such charge shall not be deemed to be a contravention of any prohibition against charging or burdening contained in the deed or instrument under which the holding or estate is hold by the landlord.
The price of any entailed land sold under the provisions of the Entailed Acts, where such price is entailed estate within the meaning of those Acts, may be applied by the landlord in respect of the remaining portion of the entailed estate, or in respect of any other estate belonging to him, and entailed upon the same series of heirs, in payment of any expenditure and costs incurred by him in pursuance of this Act for executing or paying compensation for any improvement mentioned in the first or second parts of the schedule hereto, or in discharge of any charge with which the estate is burdened in pursuance of this Act in respect of such improvement;
page 9, line 2, leave out "Limited Liability," and insert "Companies;" line 13, leave out "charged;" line 15, leave "landlord's interests," and insert "interest of the landlord, his executors, administrators, and assigns," after line 16, insert as a heading to Clause 27—
Removing for Non-payment of Rent;
line 19, leave out the first "to," and insert "for;" line 23, leave out "said
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six months rent is," and insert "arrears of rent then due are;" line.25, line 30, leave out "said," and insert "such," the next eight Amendments, agreed to.
§ Page 10, line 2, leave out "two years," and insert "one year," and leave out "three," and insert "two," the next Amendment, read a second time.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, the Government were disposed to agree to this Amendment. There had been a good deal of discussion on the subject, and it had been pointed out that, possibly, the adoption of so long a period as two years' notice might degenerate into a mere form, and that a shorter period would not be open to the same objection. They had consulted with many persons interested in agricultural matters, and he gathered that there was no strong opinion upon the point one way or other; but, as there seemed to be an impression that a shorter period would be satisfactory, they were willing that "one year" should be inserted instead of two.
§ Motion made, and Question proposed, "That this House doth agree with the Lords in the said Amendment."—(The Lord Advocate.)
§ SIR ALEXANDER GORDONsaid, he hoped the House would not agree to the Amendment. They had discussed the question already very often, and the House had agreed, a few days ago, that there should be two years' notice instead of one. That conclusion had been unanimously arrived at, and he could not but express his surprise that the right hon. and learned Lord Advocate should now turn round. The period agreed upon had been asked for by the farmers ever since he had been in Scotland, in consequence of the form of leases which was customary there. In this matter, the English custom was no guide whatever. It was surely no hardship on a landlord who had a lease, to ask him to make up his mind two years beforehand, whether he would keep his tenant or not.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he would point out that the obligation was upon the tenant, as well as the landlord. It would be putting a great deal upon the tenant to retain the period of two years in the clause. It 1591 very often happened that a tenant could not make up his mind whether to go or remain.
§ SIR JOHN HAYsaid, he thought two years better than one for the purpose of the Bill; but, although he would admit there was a strong feeling on the subject, and agreed with the view of the question taken by his hon. and gallant Friend opposite (Sir Alexander Gordon), he hoped it would not be thought necessary to put the House to the trouble of dividing on the Amendment.
§ Question put, and agreed to.
§ Page 10, leave out lines 19 to 21; and in line 24, after "planting," insert "feuing," and after "purpose, "insert" or to subjects let for any period less than a year," the next two Amendments, agreed to.
§ Page 10, leave out Clause 29, the next Amendment, read a second time.
THE LORD ADVOCATE (Mr. J. B. BALFOUR)said, he must ask the House to disagree with this Amendment. Clause 29 was a section of the Bill to which great value had, in his opinion, been justly attached. There appeared to have been some misapprehension as to its nature and scope in "another place," which arose, probably, from the language used in its construction, which might have given rise to the idea that it was to authorize assignment during the life of the tenant. He should move to amend the clause by striking out the word "assignment" wherever it occurred, and insert words that would make it clear that a mortis causa gift was intended, and which would also provide that the tenant should have the power of designating his heir. They were also prepared to meet certain objections that seemed reasonable—that was to say, objections of a somewhat limited kind.
§ Question put, and agreed to.
§ Clause restored, and amended.
§ Page 11, line 28, after "tenant," insert "before or within a reasonable time after the termination of the tenancy," the next Amendment, agreed to.
§
Page 13, line 12, leave out from "holding," to "the," in line 16, and insert—
Of less than two acres in extent, not being a market garden, or to a holding unless it is either wholly agricultural or wholly pastoral, or in part agricultural and as to the residue
1592
pastoral, or in whole or in part cultivated as a market garden, or to a holding let to the tenant during his continuance in any office, appointment, or employment held under,
—the next Amendment, read a second time.
§ On the Motion of The LORD Advocate, said Amendment disagreed to.
§
Page 13, line 18, leave out from "tenant," to "shall," in line 22, and insert—
By virtue of which he is deprived of his right to claim compensation under this Act in respect of any improvement specified in the schedule hereto except an agreement providing such compensation as is by this Act permitted to be substituted for compensation under this Act;
page 14, line 11, after "thing," insert Clause (a.)—
§ (Consents, &c. not subject to statutes regulating execution of deeds.)
§ "(a.) It shall be no objection to the validity of any consent in writing or agreement in writing within the provisions of this Act signed by the party or parties thereto or by any person or persons authorised by him or them that such consent or agreement has not been executed in accordance with the statutes regulating the execution of deeds in Scotland; "
§ leave out lines 13 to 18; page 15, line 10, after "Scotland," insert "'Companies Acts 'means the Companies Acts, 1862 to 1880, and any Act amending the same," the next four concluding Amendments, agreed to.
§ Committee appointed, " to draw up Reasons to be assigned to The Lords for disagreeing to certain of the Amendments made by The Lords to the Bill: "—The LORD Advocate, Mr. SOLICITOR GENERAL for SCOTLAND, Mr. SOLICITOR GENERAL for ENGLAND, Mr. DUFF, Mr. DODSON, The JUDGE ADVOCATE GENERAL, and Lord RICHARD GROSVENOR:—Three to form a quorum:—To withdraw immediately.