HL Deb 01 July 1853 vol 128 cc1083-7

Amendmentsreported (according to Order).

LORD ST. LEONARDS

moved Amendments on Clause 10, the effect of which was to renew the Commission for one year instead of two, and to extend the duration of the Commissioners to three years instead of four.

LORD MONTEAGLE

opposed the Amendment, but at the same time suggested that during the term of two years proposed by the Government, measures should be taken as far as possible to provide for the discontinuance of the extraordinary jurisdiction of the Commission, and the merging of its powers in the Ordinary jurisdiction of the Court of Chancery.

The LORD CHANCELLOR

said, that the Government would be happy if the necessity for continuing the Commission should cease before the termination of the term of two years, and that they would endeavour to provide for the absorption of its powers in the ordinary jurisdiction of the Court of Chancery.

LORD ST. LEONARDS

declared that this was impossible, and that the powers of the Commission could never be exercised by the Court. He clearly perceived that the secret purpose of the Government was to perpetuate the extraordinary powers of the Commission, which he conceived to be most pernicious.

LORD CAMPBELL

said, he hoped the law of England and Ireland would be assimilated, not only as to the income tax, but as to the Encumbered Estates Commission, the powers of which would prove most beneficial if applied in this country in some form, whether under a similar Commission or under the Court of Chancery.

The EARL of DESART

said, he could not concur in this wish, and scarcely thought the noble and learned Lord could have expressed it, had he not taken advantage of the Commission in some recent transactions of his in Ireland.

The MARQUESS of LANSDOWNE,

after expressing his opinion in favour of the continuance of the Act for two years, observed that, by the operation of the Encumbered Estates Act, a division of property had taken place of a most desirable nature in Ire- land, and that in a most legitimate manner. It had introduced a new and an important class of proprietors into Ireland, for a large proportion of English and Scottish capital had been so invested. From year to year, as this English and Scottish capital had been invested, the amount of such investment became greater and greater. The Act had not only introduced a new class of proprietors, but a new description of industry into that country.

The EARL of DERBY

confessed that, from what had been said this evening by the noble Marquess and by the noble and learned Lord the Chief Justice of England, the question appeared to him to be, not whether the Act should continue for one year or for two years, but whether it should be a part of the permanent system of legislation for Ireland, and, not only for Ireland, but, from what the noble and learned Lord had said, for England also. Now, to this he should strongly object. The Act, no doubt, had worked beneficially in many respects, but it had also worked very injuriously in various instances. There were many instances of persons who were perfectly able to meet all their liabilities, but whose estates were slightly encumbered, having been driven into this Court by the compulsory operation of the Act; and the effect of these forced sales was a great sacrifice, or perhaps entire ruin. The Bill was originally introduced as an exceptional measure to meet an exceptional state of things, and he wished to record his desire to restrict that exceptional system at the earliest possible period; consequently, he should vote in favour of his noble and learned Friend's Amendment.

The MARQUESS of CLANRICARDE

thought it was immaterial whether the Bill were continued for one year or two years, as he understood an intention had been expressed, amounting very nearly to a pledge, that there should be a very considerable alteration made in the law of real property in Ireland, so far as facilitating the sale and transfer of land, and the raising of money on real property. There was no doubt that the Encumbered Estates Act had conferred some advantages, and those, he hoped, would be preserved. And, as it was most desirable that the law in Ireland should be perfected with the least possible delay, if he thought the Amendment would effect that, he would vote for it. The Act, however, in other respects, had operated most prejudicially to the owners of real property in Ireland; because its effect was to throw the whole business of the sales of real property in that country into the Encumbered Estates Court, and by this means it put a stop to sales in other ways, and to the raising of money by way of mortgage. He thought, therefore, this state of things must be soon brought to a conclusion.

LORD BEAUMONT

said, the advantages and disadvantages of the Encumbered Estates Act had not yet been distinctly stated. The beneficial and advantageous part of the Act was, the facility it gave to the transfer of landed property, and the security it afforded to titles. But he would not, for the sake of preserving those advantages, consent to make the Act permanent either in Ireland or in this country; because the principle of the Bill was highly objectionable, that principle consisting in the power which the Bill gave to a man who might be a pecuniary encumbrancer on the estate, perhaps to a very small amount, of forcing into the market that estate. He should wish to see this principle altogether put down; but, as it was intended that it should exist for some little time further, he should prefer the period of two years to that of one year, because, if it were renewed only for the shorter term, it would bring so much landed property into the market at once that there would be a glut, and, consequently, a depreciation in the value of the property.

LORD ST. LEONARDS

said, that any encumbrancer, however small, had the power of presenting a petition to the Commissioners for the sale of the property; and, whether or not they were compelled, in practice they constantly did order the sale of the whole property, and the encumbrancer had the right of forcing the sale for his own encumbrance. He had lately had in his hands the papers relating to a case in which an encumbrancer for the small sum of7l., with costs amounting to12l., had presented a petition (doubtless under the auspices of some artful attorney) under which the Commissioners had actually ordered the sale of an estate worth200l. a year, the first charge upon the proceeds of which would be the payment of the costs of the creditor on this petition.

On Question, their Lordshipsdivided: —Content 36; Not Content 45: Majority 9.

Amendmentdisagreed to.

The EARL of DERBY

said, that in the present state of the law, although the Encumbered Estates Commissioners had the power of ordering the sale of estates, they had no power to include in that sale any outstanding arrears of rent. The practice in Ireland was, that rents were not payable for a year, or a year and a half after the period at which they became due. There was no power to sell these arrears of rent with the estates, and consequently a purchaser found that for a year or a year and a half the seller was levying rents upon the property he had bought. He (the Earl of Derby) thought the simple remedy for this inconvenience would be to introduce words into the present Bill which would give power to the Commissioners to sell the outstanding arrears of rent at the same time with the property. In that case the persons selling would obtain fair and reasonable consideration for their rents, and the parties coining into possession would at once receive the rents of the property. He had not prepared any clause for the purpose of carrying his views into effect, but he preferred to bring the matter under the notice of the Government, who might consider before the third reading whether they deemed it desirable to introduce some provision on the subject.

LORD ST. LEONARDS

fully concurred with the noble Earl as to the inconvenience he had pointed out attending the operation of the present Encumbered Estates Act, and hoped the subject would receive the attention of his noble Friend on the wool-sack.

The LORD CHANCELLOR

said, he had already pledged himself to their Lordships that his only object in introducing this Bill had been to continue the Encumbered Estates Court in its present form, merely removing a few of the obvious anomalies which existed in the present law. He had thought, however, that the introduction of such a power as the noble Earl had referred to would be open to great objection on the part of those who considered that a power of that kind ought not to be given. He must say that he felt very great difficulty in introducing such a power with reference to encumbered estates sold under the Encumbered Estates Commission, which was not part and parcel of the general law of the land. It was said, that when estates were sold in Ireland, there was ordinarily a year's rent in arrear. If, upon a sale, it appeared desirable that the purchaser should receive the arrears of rents, it seemed to him that a general alteration of the law of Ireland was requisite to enable parties who sold estates to sell along with those estates the arrears of rent upon them. He did not see why an exception should be made merely in the case of parties whose property was sold under the authority of the Encumbered Estates Court, He would consider whether a clause on this subject could be introduced into the Bill; and he believed that, if it could be done, such a clause would not only meet the wishes of the noble Earl, but also of the Encumbered Estates Commissioners.

The EARL of DONOUGHMORE

was understood to say that it used to be the practice in Ireland to get up fictitious rent-rolls, and landlords who wished to borrow money from capitalists were able, perhaps, to present to them rentrolls of some 10,000l. a year, though the rents actually received were 20 or 25 per cent below that amount. When the Encumbered Estates Act came into operation, the arrears of rent upon such properties were enormous, and the Commissioners had no power when they sold the estates to give a legal receipt for the arrears, though the former proprietors had never intended to claim them. This led to great inconvenience, and he thought it was most desirable that, if possible, some provision should be made in the present Bill for remedying that inconvenience, and for contriving some mode by which the arrears of rents on encumbered estates might be sold with the estates themselves. He had given notice of his intention to propose the addition of some clauses to this Bill; but after conversations which he had had with his noble Friends opposite, he was quite ready to leave the subject to which these clauses referred in the hands of the Government.

Bill to be read 3s onTuesday next.

House adjourned to Monday next.