SECOND READING. (Hansard, 22 March 1858)

§ LORD ST. LEONARDS
in moving the second reading of this Bill, stated that a law had been in existence from the time of Lord Coke to the present day, which had never been altered, but which every one agreed ought to be altered. The law was laid down in Dumpor's case, that whore a condition in a lease was dispensed with by license even to assign for example to one person the condition was gone for ever, and he proposed by the present Bill that any condition should only be affected by a license in the particular case to which the license referred. He thought that a landlord ought to have the benefit of every insurance effected upon his property, although not made in accordance with the lessee's covenant. There was already a remedy for the landlord under the Building Act, at least in the Metropolis, but his additional remedy would be found useful. Equity will in some cases relieve a tenant from a breach of covenant working a forfeiture, but this remedy is not extended to a breach of a covenant to insure. If a tenant were to omit to keep up his insurance, for however short a time, it would be a breach, and although no fire had occurred, the landlord might re-enter if there was the usual power of re-entry in the lease, and oust the tenant, who would be remediless although he might have expended thousands on the property. He proposed, that the tenant in the absence of fraud or gross negligence, where no damage had happened, should be relived if the insurance was correct at the time, but only once relieved, upon payment to the landford of twice the amount of the premium, which ought to have been paid with interest at 5 per cent. from the time they should have been paid. This will prevent negligence and will be an indemnity to the landlord for the risk run although no damage was sustained whilst the property was uninsured. It had become a common practice upon the sale of leasehold property to insert in the conditions of sale a provision to the effect that the production of the receipt of the last payment of rent without the production of any fire insurance effected upon the property should be a good title to the purchaser. Hundreds of purchases had been made under that stipulation, but nothing 449 could be more dangerous, because if, by mistake, the property had not been insured, the landlord, even although he might have given a receipt subsequent to the period at which the covenant to insure had been broken, would not be bound by that receipt, and might recover the whole of the property from the purchaser. A remedy in that respect was needed every day. What he proposed, therefore, was, that where the purchaser had not actual notice that there had been a breach of covenant, and the landlord's receipt for the last payment of rent, and the sale was a regular bonâ fide transaction, the purchaser should not be affected by any breach of covenant previous to that receipt. With regard to the days of grace allowed by fire insurance offices for payment on insurance policies, no court of law had yet actually decided whether they were bound to adhere to their promise to allow days of grace. All the insurance offices had lately issued advertisements stating that the days of grace were binding upon them; but he had lived long enough never to trust any directors; he therefore proposed to make it imperative upon the insurance offices to allow days of grace when they had given days of grace, just as if those days had been mentioned in the original policy. He requested the Law Life Office, whose business was of great extent and importance, to look at the clause which he had drawn on this point. They did so, and stated that it would in their opinion work fairly to them as well as to the insurer. The directors assured him that they had no objection to it. He would gladly receive any communication with which the directors of any other office might favour him upon the clause. He proposed that the release from a rent charge of part of the hereditaments charged therewith should not extinguish the whole rent charge, but should operate only to bar the right to recover any part of the rent charge out of the particular hereditaments released. The Bill contained a similar enactment with regard to judgments. The release from a judgment over a portion of an estate was not to operate beyond the actual portion released by the particular judgment. In this provision he followed the precedent which had been found to work satisfactorily in Ireland. With respect to uses he proposed an important provision which was calculated, he belived, to set at rest a number of very difficult questions which constantly arose out of this branch of the subject. He proposed that 450 where by any instrument any hereditaments were limited to uses, all uses thereunder, whether expressed or implied by law, and whether immediate or future, or contingent or executory, should take effect as they arose by force of, and by relation to, the estate and seizin originally vested in the person seized to the uses. This would get rid of the fine doctrine which is termed scintilla juris, and which led to such learned yet trifling discussions, after the passing of the Statute of Uses, in the reign of Henry VIII. With respect to the execution of powers by deed, he might remind the House, the law had already been altered in regard to wills, with perfect satisfaction to every one, and he proposed by this Bill, to place the law relative to the execution of powers by deed on precisely the same footing as the execution of powers by will. He proposed that where there was a power to dispose of property by deed, the instrument should be executed in the ordinary way, and property and powers should be placed on the same footing. It had been decided in that House, that if a trustee sold an estate—having the power to do so—and by mistake gave certain benefits to the tenant for life which he ought not to have, yet if that were a mistake and no fraud, they would not allow the estate of an innocent purchaser to be taken from him, hut would give compensation to the person entitled to the property, so as to make good the deficiency created by a wrong proceeding by mistake. Acting upon that principle he proposed to place powers on exactly the same footing as property. The effect would be that where money had been paid by mistake to the tenant for life, the mistake might be corrected by repayment of the money to the persons entitled under the settlement, and they would be placed in just as good a position as if the money had been originally paid to the trustees. The present law may work great hardships. The Marlborough family bought White Knights, the well known estate upon which they expended largo sums. It was sold under a power; and as the tenant for life had a power to cut down all the timber, but left it standing, the trustees allowed him to receive the value of the timber, but subsequently finding this was wrung, he invested the sum paid to him upon the trusts of the settlement, the purchase nevertheless was set aside, and a remainder-man under the settlement recovered the estate with the timber. The next clause took away the 451 right to limit an estate after lives in being for a term of twenty-one years, without reference to the minority of any person entitled to take the estate. This as it stood was an abuse of the law against perpetuities. The next clause was intended to supply a remedy for a defect in the law of inheritance which had been very much felt. He proposed that where there should be a total failure of the heirs of the purchaser of land in fee simple, the land should descend and the descent should be traced from the person last entitled to the land as if he had been the purchaser thereof. The real property Commissioners intended to provide for a case of hardship, but ultimately the clause was struck out of their Bill. He had introduced it into the present Bill. It was to provide for a case of this sort. An illegitimate person bought an estate, and married, and had an only child, a son, the estate not being devised, of course descended to his son; the son died without issue, and the estate was held to have escheated to the Crown instead of going, as he now proposed, to the natural heirs of the son. In the next clause he proposed to give power to any person to assign property to himself and another person, in the same manner as he might now assign the same to another. The last two clauses referred to the manner in which wills might be attested and executed. At present when a will was attested in any place where the testator might see the attesting witnesses sign, the will was held good even though he did not absolutely see them; but if it was attested in any place where the testator could not see them it was invalid. He proposed to enact that even though it might be attested in any place where the testator could not see the attestation executed, yet if the court or jury should be of opinion that the particular place of attestation was chosen not for the purposes of fraud but simply for convenience, the will should be valid. The old statute of Charles II. made a will valid which the testator acknowledged to the witnesses, and which was then attested by them. But the new Wills Act required that the testator should either acknowledge his signature or sign in the presence of the witnesses who were also to sign in the presence of each other. It might happen that a testator called in two persons and said, "I want you to witness my will," folding down the paper so as to cover the signature. Such a will was void. He thought that was too nice a distinction 452 upon which to invalidate a will when the signature of the testator was in the proper place, and the witnesses were both present, and both attested the will in the presence of the testator, and a clause upon the subject was therefore inserted. He could assure their Lordships, that in proposing these alterations, he was carrying out the declared intentions of the Real Property Commissioners. In their fourth Report, they proposed that the signature or acknowledgment should be in the presence of one or two witnesses present at the same time. He would read to the House, from the Report, what followed on this subject:— We do not think it necessary to continue the provision of the statute of frauds which requires the witnesses should subscribe in the presence of the testator. This, as we have stated, has been disregarded so far that the Courts have not required that the testator should actually see the witnesses sign, but have considered it sufficient if he might see them; and yet several fair wills have been adjudged void, where witnesses have signed in an adjoining room, and even where the testator, if he had thought proper, might have seen them merely by changing his position. It is important that no long interval should elapse between the execution and the attestation of a will, because it would afford an opportunity for the substitution of a false will, and, therefore, create doubt whether the attestation was written upon the will which had been executed by the testator. But if it be required that both witnesses shall be present at the time when the will is signed or acknowledged, and shall attest it in the presence of each other, the signatures of the witnesses will usually be made either in the presence of the testator or before they lose sight of the will. We have considered whether any regulation can be made for affording further security in this respect, but we have not been able to devise any provision which would not occasion evil or inconvenience of more importance than the advantage it would afford. It does not appear to us that the additional security which may be obtained by requiring the witnesses to sign in the testator's presence is of so much importance, as the burthen and danger of imposing such a restriction. Their second proposition accordingly requires the two witnesses to subscribe their names to the will, but is silent as to the presence of the testator. The noble and learned Lord concluded by recommending the Bill to the consideration of their Lordships.

THE LORD CHANCELLOR
said, he had appealed to the noble and learned Lord the other night to postpone his measure for further consideration. It was undoubtedly one of considerable importance, and the public, he was sure, would feel much indebted to the noble and learned Lord for the great attention he had given to the 453 subject. The provisions of his measure were very general—many of them were very valuable—some of them, he ventured to say, were objectionable. But whatever might be the opinion of himself or that of any other noble Lords, he thought after hearing the able exposition of his noble and learned Friend on a subject in itself difficult and complicated, their Lordships would all agree with him in thinking that this matter could only be discussed advantageously in Committee. He would, not, therefore, oppose the second reading; but he would suggest that after it had been read a second time it should be sent before a Select Committee, where its clauses could be much better considered than in the House itself.

LORD BROUGHAM
concurred with the noble and learned Lord that this Bill could be better discussed by a Select Committee. To many of its provisions he had material objections. There were other clauses in it of great importance, to which he apprehended there would be no objection.

§ LORD ST. LEONARDS
said, he would state on Friday what steps he should take as to the further progress of the Bill.

§ THE EARL OF DERBY
trusted his noble and learned Friend (Lord St. Leonards) would not object to send his Bill before a Select Committee, where it was most likely to receive the fullest and most attentive consideration.

§ LORD ST. LEONARDS
said, he had no objection to refer both this Bill and the Bill for Simplifying the Transfer of Land to a Select Committee on Friday, when he would take the opinion of the House upon a clause in the latter Bill, to which the late Lord Chancellor objected.