Lords Sitting of 11 July 1882

MINUTES.
PUBLIC BILLS—Second Reading—Baths and Wash-houses Acts Amendment * (180); Metropolitan Board of Works (Money) * (181).
Committee—Judgments (Inferior Courts) * (110); Entail (Scotland) (re-comm.) (169–191).
Committee—Report—Third Reading—Prevention of Crime (Ireland) (186), and passed.
Report—Stolen Goods * (185).
Third Reading—Justices' Jurisdiction * (174); Local Government (Ireland) Provisional Orders (No. 4) * (171), and passed.

EGYPT (MILITARY OPERATIONS)—PROCEEDINGS OF THE FLEET AT ALEXANDRIA.

  QUESTIONS.
  THE MARQUESS OF SALISBURY: I beg to ask the First Lord of the Admiralty, Whether he has received any information of public interest which he
  2
  thinks it desirable to communicate to the House?
  THE EARL OF NORTHBROOK: My Lords, I have received the following telegrams, which I will read to the House. The first is dated July 11, 7.10 A.M. It states—
  "Ships have opened fire on the forts.
  "Ships in following positions:—Alexandra, Sultan, Superb under weigh on a north-east by-east line from l,500 to 1,900 yards W. ½ N. Eunostos Lighthouse. Inflexible in Corvette Pass, 3,700 yards N. by W. of Mexs Fort; Téméraire in Central Pass, 3,500 N.N.W. Mexs; Penelope, Invincible (flag), Monarch, 1,000 to 1,300 yards W. by N Mexs. Unarmoured ships under weigh working guns to best advantage annoying Mexs. Return fire from forts weak and ineffective. Hecla has arrived.
  The next telegram is dated 8 A.M.—
  "Bombardment continues. Heavy explosion in Fort Marsa-el-Kanat. Return fire from forts slackening.
  "French squadron sailed last evening, leaving Bison and Hirondelle off the port."
  A telegram dated 11 A.M. states—
  "Forts on Isthmus comparatively silenced. Moncrieff near Lighthouse and one gun, Fort Ada replying about 10 rounds an hour. Alex-

  3
  andra, Sultan, and Superb at anchor returning fire. Unarmoured ships warmly engaged inside Fort Marabout, Egyptian practice apparently very indifferent."
  The last telegram we have received is dated 1.30 P.M.—
  "Magazine Fort Ada Mown up."
  I have, however, seen a later private telegram received a short time ago. It is as follows:—
  "5 P.M. Outside forts still resisting. Forts between Alexandria and Ramleh opening fire."
  These would be the forts to the eastward of the new port. From this last telegram I gather that the ships, having silenced the forts to the north, proceeded eastwards and were engaging Fort Pharos to the west of the new port; but that is merely my own conjecture. Those are all the telegrams we have received.
  THE EARL OF CARNARVON: My Lords, it will be very satisfactory to your Lordships, I think, if the noble Earl has it in his power to add any assurance as to the safety of the Khedive. I observe that in one of the telegrams which have appeared in the newspapers, it is stated that a very large number of people were seen making their way to the Khedive's palace. Has the noble Earl received any information on the subject?
  THE EARL OF NORTHBROOK: We have received no information on the subject. The telegrams we have received have come from the Admiral's secretary, who is either on board or close to the ship to which the cable is attached, now lying four miles from Alexandria. None of the telegrams have come from the Admiral himself.
  EARL DE LA WARR: My Lords, the noble Earl the First Lord of the Admiralty has just informed your Lordships that forts have been bombarded by British ships in a country with which we are at peace, and to which we are bound by Treaties in close alliance. I wish to ask the noble Earl the Secretary of State for Foreign Affairs, whether there has been any formal declaration of war; and, if so, whether he can state for what reasons?
  EARL GRANVILLE: My Lords, I do not think it will be convenient at this moment to enter upon the discussion of a question of International Law, especially as no Notice of the Question
  4
  has been given to Her Majesty's Government by the noble Earl. With regard to the fact itself, I beg to deny that we are in alliance with the military despotism which is at this moment the de facto Government of Egypt.
  EARL DE LA WARRwas understood to remark that Egypt was a part of the dominions of the Sultan of Turkey.
  In reply to another noble LORD,
  THE EARL OF NORTHBROOKsaid, the Government had no knowledge of the destination of the French Squadron. They had no further information than what had come in the telegrams he had read.
  Subsequently,
  THE EARL OF NORTHBROOK: Perhaps your Lordships will allow me to interfere for one moment to read a further telegram from Alexandria. It is dated 4.50 P.M., and it says—
  "Mexs, as well as all forts on sea front of peninsula, silenced. Action between unarmoured ships and Marabout ceased 11.40. Monarch and Penelope now engaged with batteries inside harbour. Invincible unengaged, lying off Mexs."

PREVENTION OF CRIME (IRELAND) BILL.—(No. 186.)
(The Lord Privy Seal.)
PREVENTION OF CRIME (IRELAND) BILL.—(No. 186.)

  COMMITTEE.
  Order of the Day for the House to be put into Committee read.
  Moved, "That this House do now resolve itself into Committee upon the said Bill."—(The Lord Privy Seal.)
  Motion agreed to.
  House in Committee accordingly; Bill reported without Amendment.
  Then Standing Order No. XXXV. considered (according to order), and dispensed with; Bill read 3ª.
  On Question, "That the Bill do pass?"
  LORD DENMANsaid, he would say "Not Content," because he wished to record his protest against the measure.
  Question put, and agreed to.
  Bill passed.

ENTAIL (SCOTLAND) (re-committed) BILL.
(The Earl of Rosebery.)
ENTAIL (SCOTLAND) (re-committed) BILL.

  (NO. 169.) COMMITTEE (ON RE-COMMITMENT).
  Order of the Day for the House to be put into Committee (on He-commitment) read.
  Moved, "That the House do now resolve itself into Committee."—[The Earl of Rosebery.)
  THE EARL OF MINTO, in asking, Whether it is the intention of Her Majesty's Government to produce to the House any further information in connection with the subject of Scottish Entails in elucidation and correction of the Return No. 154 of the present Session, recently presented to the House? said, that farmers at public meetings had expended a great deal of eloquence in denouncing the Law of Entail in Scotland, though it appeared to him there was little reliable information upon the subject. A Return had, indeed, recently been obtained on the Motion of the noble Earl near him (the Earl of Camperdown), but the information conveyed in the Return was imperfect. They did not yet know, for example, the number of entails in existence in Scotland at the present moment, nor the number of proprietors which these entails represented. There were some entails which had effect over large areas of land, and others only over a few small fields. At least, it was so prior to 1848; but in that year the great Act known as "Lord Rutherford's Act" was passed. Neither the Return in question, nor any previous Return, gave them any information whatever on a subject of that kind. He had, however, made pretty general inquiries, and, as the result, he gathered that there was a much smaller extent of country in Scotland under entail than he had any idea of. There were a number of very large estates, including that of the noble Duke (the Duke of Argyll), which were unentailed, and he had heard privately of a number of other very large properties which were unentailed. In point of fact, the proneness to disentail was in progress and going on, and it was, therefore, a matter of interest to know where the great damage had been done, and the great injury experienced by the existing law. Personally, he was himself entirely
  6
  in favour of liberating the land, as proposed in the Bill now before the House; but, nevertheless, he submitted some further information would be desirable. There were 2,350 registered entails at the present time, according to Lord Camper-down's Returns, and he wanted to know whether the Government could inform the House how many proprietors of entail in Scotland were represented by those figures? He also wanted to know, and he did not think there would be anything invidious in giving, the names of these proprietors of entailed lands? There was another point on which he should like some information. In former days, particularly, the only way in which a Scottish entail could be broken—for prior to 1848 entails were perpetual—was by the discovery of some flaw or irregularity in the procedure under the rules dealing with entail, as in the case of the Hamilton estates; and he should like to know how the matter stood now? It would also be desirable if they could know approximately what might be the proportion in Scotland between entailed and unentailed properties, and the probable extent of the entailed land might approximately be given also; and further, it would be very useful if they could be informed in what districts the largest accumulations of entailed land were to be found. He thought these little bits of information, which were not in the Return presented some time ago, but which could be added to it, would be of public interest.
  THE DUKE OF ARGYLLsaid, he agreed with his noble Friend (the Earl of Minto) that the information in the Return referred to was very imperfect in regard to the real bearing and extent of the system of entail in Scotland, and he entirely agreed with him also in that, so far as he (the Duke of Argyll) knew, from the ordinary sources of information, there had been an immense exaggeration in the way of oratorical condemnation of the effect of entails upon agricultural improvements. His own belief had always been that, in the first place, the extent of entail in Scotland was much more limited than the public supposed; and, in the second place, that some of the most prosperous estates, and those on which the largest amount of money had been expended in improvements, were the old entailed estates of Scotland.

  7
  He believed that if the Government could supply them with the information for which his noble Friend asked, these facts would come out very clearly. He knew himself of individual cases where large estates had long been under entail, and these were the estates upon which unquestionably the largest and most liberal expenditure had taken place. On the other hand, he knew very small estates which had been under strict entail, and the result was that the proprietors had been long in a very impoverished condition, and were unable to spend money on their property. It was for that reason that he thought the present state of affairs unsatisfactory and inexpedient, and was ready to support the principle of the Bill. The noble Earl had referred to one fact of importance, and that was the effect of the decision of the Courts of Law in disentailing property in Scotland. The fact was the Act of 1848, commonly called the "Rutherford Act," contained a clause that provided, unless he was much mistaken, that the old entails of Scotland, which were found to be deficient in any respect, as, for instance, the clause against sale, or the clause against borrowing, should be declared to be void altogether, if they were informal in any of their provisions. He happened to know that such was the fact, because it was under that Act that his own property was disentailed. The Courts of Law in Scotland had for long been against the very strict old entails, and they were very ready to find flaws in them, if they could be found. He believed that clause of the "Rutherford Act" had a very large and complete effect in doing away with entails. He believed a great deal of very useful information could be given to the House, if the Government would oblige them with the particulars asked for—if they would write to the Register Office for them. He was afraid some of the proprietors would object to giving the acreage of their land under entail, and he knew no method by which the Government could arrive at the number of acres under entail before 1848, or after that date; but as some indication had been given in "another place" that the Bill they were going to discuss was but a temporary arrangement, and that probably some further proposition would be made, either by this Government or other Governments, on the subject of entails, and that
  8
  in short, they were not dealing with a final measure, he thought it would be worth considering whether some further information could be given to their Lordships.
  THE EARL OF ROSEBERYsaid, the Government would be extremely glad to supply both the noble Earl (the Earl of Minto) and the noble Duke (the Duke of Argyll) with all the information they asked for; but it was not so easy a matter as they seemed to think. To begin with, there were 2,350 entails or deeds of entail in Scotland, given in the Return recently presented to the House. To obtain approximately any part of the information which was wanted by the noble Earl they would have to overhaul every one of those deeds of entail, and they would then have to send a circular to the various landowners, to which they might or might not reply, asking them what was the extent of the land do-scribed in the deed of entail. That would be a laborious method of carrying out the investigation; but it was not on that point alone that it would not be desirable to institute the inquiry. It was perfectly certain that all the proprietors would not answer, and would not give the Returns. They would, therefore, have imperfect and very inadequate Returns, which, to his mind, were worse than having no Returns at all. There was one point, however, on which he could give the noble Earl accurate and exact information. The noble Earl asked whether the figures in the Return previously presented made allowance for the entails invalidated by the Courts of Law in consequence of flaws or irregularities in the original deed of entail. There was no allowance made for those, as he had ascertained from the Crown Office, and that, no doubt, made some considerable difference in the Returns. He confessed he had not much knowledge on these points to which his attention was called; but, as at present advised, he did not believe he could give the information required. It would be imperfect if they obtained it; therefore, unless the House persisted in the demand for the Return, it would be better not to delay the Bill by preparing it. If the noble Earl was of opinion that imperfect Returns, such as he described, would be better than none at all, he would refer the matter in detail to the Register Office in Edin-

  9
  burgh, and give the noble Earl another answer.
  THE EARL OF MINTOsaid, that, under the circumstances intimated, he would not press the matter.
  Motion agreed to.
  House in Committee accordingly.
  Clauses 1 to 5, inclusive, agreed to.
  Clause 6 (Provisions for applications for authority to borrow,-charge, lease, and feu).
  LORD WATSON, in moving, as an Amendment, to omit Sub-section 2, which gave authority to the Court or the Sheriff to grant a feu or a lease of a portion for an estate not exceeding two acres in extent, for a scientific purpose or other purpose of public utility, at a feu-duty or rent agreed upon, said, he did so because he was afraid that under the sub-section the possessor of an entailed estate might alienate his estate to a very large extent.
  Moved,"To omit Sub-section 2 of the Clause."—[The Lord Watson.]
  THE MARQUESS OF HUNTLYsaid, in opposing the Motion, and in support of the sub-section, that its object was simply to extend the principle now in force, under which an entailed proprietor might come before the Sheriff, and give a feu for certain purposes of public utility, such as churches. The sub-section extended the power of giving off ground at a nominal rent for purposes of "public utility." Surely the noble and learned Lord might leave it to the Sheriff to decide whether or not the applications were for a purpose of public utility. He (the Marquess of Huntly) knew many instances where, with very great benefit, especially near small towns, proprietors had been very willing indeed to give off land for a mechanics' institute and so forth at a small feu-duty.
  THE EARL OF ROSEBERYsaid, that, with regard to the sub-section to which the noble and learned Lord opposite (Lord Watson) took exception, he (the Earl of Rosebery) did not pretend to say that the words might not be a little more exact; but he did not believe there would be any danger of a Sheriff extending too largely the interpretation of the words "for a scientific purpose or other purpose of public utility." He
  10
  thought the matter might safely be left to the discretion of the Court. He really did not share the apprehension of the possibility of any heir in possession unjustly alienating his estate under this provision. However, if it so pleased the noble and learned Lord, it might be well to leave the question over until the Report stage of the Bill.
  THE DUKE OF BUCCLEUCHsaid, that his experience was that the clause, as at present drawn, was too wide.
  LORD WATSONsaid, he would point out that "public utility" was a thing to be distinguished from a merely commercial matter. He would accept the suggestion of the noble Earl in charge of the Bill (the Earl of Rosebery) and withdraw his Amendment, reserving his right to raise the question again on Report.
  Motion (by leave of the Committee) withdrawn.
  Clause agreed to.
  Clause 7 (Lease may be renewed three years before expiration).
  LORD WATSON LORD WATSON moved an Amendment limiting the power of the heir in possession to renew a lease within three years before the expiration of the existing one, to renew such lease only "to the tenant and his heirs."
  Amendment moved, in page 2, line 39, after ("grant,") insert ("to the tenant and his heirs.")—(The Lord Watson.)
  THE EARL OF ROSEBERYsaid, he would accept the Amendment, if the noble and learned Lord would be satisfied with leaving the settlement of the question to the Report.
  THE DUKE OF ARGYLLasked, what was the effect of the Amendment? He understood it was a mere matter of words, and did not affect the substance of the clause. He was not aware that, under the existing Law of Entail in Scotland, it would be illegal for a proprietor to renew a lease to a tenant three years before the expiring of the old lease. The common practice was one or two years. It was not a common thing for a proprietor to renew the lease before the expiring of the old one but he was not aware that he would be prevented doing so by the Law of Entail. If that was a desirable thing to do he (the Duke of Argyll) maintained, in opposition to

  11
  the Amendment, that it was a power which ought to be given to him not only in regard to the existing tenant but also in regard to other tenants. He thought the clause had some resemblance to a Bill which he had heard was in the other House of Parliament, but which he trusted he would never see in that House, which compelled landlords and tenants to come to certain agreements. To make it compulsory for landlords and tenants to come to an arrangement about a new lease three or four years before the expiring of the old one was absurd and unreasonable alike in the interests of the landlord and the tenant. Supposing there were two or three years of bad harvests. That might produce a great alteration in the expectation of harvest, and, therefore, in the letting value of land, and a tenant ought to be free, as a landlord ought to he free, up to within a year of the expiring of the old lease to make a now bargain.
  THE EARL OF ROSEBERYsaid, this was a legal point in which his authority was very little; but, as he understood, the Amendment was proposed to be inserted to make legal what was a matter of uncommon practice—namely, to draw out new leases three years before the expiry of the old leases.
  THE DUKE OF ARGYLLsaid, he did not understand what the policy of the clause was. This did not seem a necessary power to put into the hands of entailed proprietors.
  THE EARL OF ROSEBERYsaid, that the policy was simply this—the fee-simple proprietors had this power; and it was obviously an advantage to put an entailed proprietor in the same position; but he was given to understand, beyond this, that great practical convenience would result from such a provision.
  THE DUKE OF RICHMOND AND GORDONsaid, he should be very glad to see the arrangement made within two years.
  THE EARL OF ROSEBERYsaid, that was a question in which he would like to be guided by the opinion of noble Lords.
  EARL CAIRNSthought there should be just sufficient time to prevent inconvenience, and considered two years would be quite sufficient.
  THE EARL OF DALHOUSIEwas sorry to differ from the noble Duke (the Duke of Argyll); but he thought it was
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  the practice in Scotland to renew leases three years beforehand.
  THE EARL OF ROSEBERYsaid, he would not put the House to the trouble of dividing on the Amendment, as he had promised it should be inserted on Report. He believed many noble Lords who had large estates in Scotland gave three years.
  Amendment (by leave of the Committee) withdrawn.
  Clause agreed to.
  Clause 8 (Applications may be made by guardians on behalf of minors and persons under disability).
  LORD WATSON LORD WATSON moved an Amendment providing that an heir in possession of an entailed estate, or a minor with the consent of his curators, might apply for authority to disentail the estate or any part thereof.
  Amendment moved,
  In page 3, to delete after ("competent") on line 6, to ("application") inclusive, on line 18, and insert ("for an heir in possession of an entailed estate, being- of full age and not subject to any legal incapacity, to make an application to the court under the Entail Acts, it shall hereafter be competent for an heir in possession, though a minor, with consent of his curators, or for the tutors of an heir in possession, if he is a pupil, or for his curator or other administrator if he is otherwise incapacitated, to make such application, not being an application for authority to disentail or sell the entailed estate or any part thereof.")—(The Lord Watson.)
  THE EARL OF ROSEBERYsaid, he must confess it was not an Amendment which he could cheerfully accept, though it might be his destiny to do so. He did not think he would be justified in asking the House to divide on the Amendment, though he considered it struck at the principle of the Bill.
  EARL CAIRNSsupported the Amendment.
  THE MARQUESS OF HUNTLYasked the noble and learned Lord the Lord Chancellor, whether the Amendment would prevent the buyer from charging the estate with the maintenance and cost of education of the minor, because those charges might be incumbent on him, and there would be no means of raising the money?
  THE LORD CHANCELLOR, in reply, said, that he did not think the clause had any bearing on that question.
  On Question? Resolved in the Affirmative; words substituted accordingly.
  Clause, as amended, agreed to.
  Clause 9 agreed to.
  Clause 10 (Consent of nearest heir may be valued and dispensed with).
  EARL CAIRNS EARL CAIRNS moved an Amendment at the end of the clause, to the effect that in any application under the section the Court might be required to ascertain the value in money of the interest of the heir, and the Court should then direct that the sum so ascertained should be paid into bank subject to the order of Court, and such sum be transferable to the next heir should the Court so order. The noble and learned Earl said, that without the Amendment an injustice would arise, for it would be a very great hardship if a person with a small interest should be enabled to buy out the heir of entail. If the heir of entail was not satisfied, he would give the next heir the choice of buying. With the Amendment there would be no injustice to anyone.
  Amendment moved, in page 4, at end of clause, to insert—
  (Heir next entitled to have right to acquire estate.)
  "In any application under the provisions of this section for authority to disentail any entailed estate or part thereof, the heir apparent or other nearest heir, or the curator ad litem appointed to him in terms of this Act, shall he entitled to require the Court to ascertain the value in money of the interest of the heir in possession in such entailed estate or part thereof.
  "Upon such value in money being ascertained, the Court shall direct the sum so ascertained to be paid into hank by or on behalf of such heir apparent or other nearest heir, subject to the orders of Court; and shall also direct the sum or sums ascertained as the value of the expectancy or interest of any remoter heirs, whose consent to the application may be necessary, to be paid or secured by or on behalf of such heir apparent or other nearest heir as nearly as may be in the manner provided in section five of the Entail Amendment (Scotland) Act, 1875.
  "Upon such sums being so paid or secured to the satisfaction of the Court, the heir in possession shall execute, at the sight of the Court, a disposition of such entailed estate or part thereof in favour of such heir apparent or other nearest heir who shall thereupon be entitled to execute and record an instrument of disentail in the register of tailzies, and such instrument of disentail, when so recorded, shall have the like effect as if the application for authority to disentail had been presented at his instance.
  "As soon as the disposition aforesaid has been executed and delivered by the heir in possession the Court shall direct the payment to him of the sum ascertained as the value of his interest as aforesaid."—(The Earl Cairns.)
  THE EARL OF ROSEBERYsaid, he thought there was a good deal in the principle the noble and learned Earl opposite (Earl Cairns) had laid down. It was a principle they must all sympathize with, and which he thought might be recognized in some other form than that in which the noble and learned Earl had put it. This was not the right of pre-emption. The right given by the clause was a very simple one. In the Bill they had endeavoured to make it perfectly clear that everyone should know what he was about; and that when a person took proceedings under the Act, he should know what the result of those proceedings might be. The result of the clause proposed by the noble and learned Earl might be that the old proprietor might find himself turned out of the estate which belonged to him. It had always been considered that the interest of the possessor was the supreme interest in Scotland, and the proposed Amendment would altogether override the interest of the possessor. That made a very important difference in the law of Scotland. He considered the Amendment one of great importance, and it ought to be considered from more than one point of view. If it only operated between father and son, there would not be very great objection to it. No one would think it very hard that a father who wished to disentail should, on receiving satisfaction of his interest, see the estate pass to his son, as in the course of nature it would have done; but that would be a very rare case indeed. How many elder sons were there who would be in a position to buy their fathers out of their estates? Therefore, it would come to be an affair between brothers or cousins, or more distant relations, and he ventured to say that, as the relation was more and more remote, the less right had the heir to expel the proprietor from his home. That was the principal objection to the clause proposed by the noble and learned Earl. He also believed it would act as a great preventive to disentail. It would hang as a sword over the head of the proprietor whom they wished to disentail. From the point of view of those who

  15
  brought in this Bill, it was not desirable so to discourage disentail. He thought it would be a pity, in the interests of the owners and in the interests of the community at large, to complicate by restrictions of this kind a large and general measure dealing with the Entail Laws of Scotland. The proposed clause would not be largely operative, and therefore it would be a disturbing clause without necessity. It would introduce a new principle in the law of Scotland; it would act as a great deterrent on people who wished to disentail, and it would be a gross injustice besides on those who had disentailed; and therefore, though he had accepted with deference all the previous Amendments, he should think it necessary to take the opinion of their Lordships on this one.
  THE LORD CHANCELLOR, in opposing the Amendment of the noble and learned Earl (Earl Cairns), said, he wished to point out that it would introduce a great anomaly which would have the effect, not of assimilating, but of still further increasing the difference between the law of England and that of Scotland. That was a thing he thought their Lordships would not desire to do.
  THE DUKE OF ARGYLLsaid, he was bound to say that he thought the objections to the Amendment were much more serious than he had been at first disposed to believe. He should, therefore, vote against it. He thought it would create a danger of entirely ousting the heir in possession.
  EARL CAIRNSsaid, he was sorry to press the Amendment against the wishes of Scotch Peers; but he must point out that the hypothesis here was, that the estate was not to be sold.
  THE EARL OF CAMPERDOWNsaid, he must confess that when he first saw the Amendment, he thought it was designed simply to give the nearest heir the right of pre-emption, and he was disposed to support it for that reason. He thought that by the use of the words "that the Court was to ascertain the value in money," it was meant to ascertain what the value of the estate was, and that the heir was to pay the difference between his own interest and the full value of the estate, and that on that being done, he should have the right to buy the estate. It seemed to him that arrangement was a fair one; but the arrangement which
  16
  had now been explained to the House was more than he could support.
  On Question? Their Lordships divided:—Contents 66; Not-Contents 67: Majority 1.

  CONTENTS.

  Buckingham and Chandos, D.

  Borthwick, L.

  Brodrick, L. (V. Midleton.)

  Northumberland, D.

  Richmond, D.

  Clonbrock, L.

  Somerset, D.

  Colchester, L.

  Colville of Culross, L.

  Abercorn, M. (D. Abercorn.)

  Cottesloe, L.

  De Freyne, L.

  Bath, M.

  de Ros, L. [Teller.]

  Bristol, M.

  Digby, L.

  Hertford, M.

  Douglas, L. (E. Home.)

  Salisbury, M.

  Erskine, L.

  Foxford, L. (E. Limerick.)

  Amherst, E.

  Bandon, E.

  Harlech, L.

  Beauchamp, E.

  Harris, L.

  Cairns, E.

  Hartismere, L. (L. Henniker.)

  Carnarvon, E.

  Coventry, E.

  Hylton, L.

  Doncaster, E. (D. Buccleuch and Queensberry.)

  Kenlis, L. (M. Headfort)

  Leconfield, L.

  Dundonald, E.

  Liford, L.

  Lucan, E.

  Ormathwaite, L.

  Manvers, E.

  Ormonde, L. (M. Ormonde.)

  Mar and Kellie, E.

  Mount Edgcumbe, E.

  Penrhyn, L.

  Romney, E.

  Poltimore, L.

  Rosse, E.

  Raglan, L.

  Stanhope, E.

  Shute, L. (V. Barrington.)

  Stradbroke, E.

  Wilton, E.

  Silchester, L. (E. Longford.)

  Clancarty, V. (E. Clancarty.)

  Strathspey, L. (E. Seafield.)

  Cranbrook, V.

  Tollemache, L.

  Hardinge, V.

  Trevor, L.

  Hawarden, V. [Teller.]

  Tyrone, L. (M. Waterford.)

  Melville, V.

  Ventry, L.

  Ardilaun, L.

  Watson, L.

  Ashford, L. (V. Bury.)

  Wynford, L.

  NOT-CONTENTS.

  Selborne, L. (L. Chancellor.)

  Saint Germans, E.

  Sydney, E.

  Bedford, D.

  Yarborough, E.

  Westminster, D.

  Canterbury, V.

  Eversley, V.

  Ailesbury, M.

  Gordon, V. (E. Aberdeen.)

  Lansdowne, M.

  Northampton, M.

  Leinster, V. (D. Leinster.)

  Camperdown, E.

  Powerscourt, V.

  Chichester, E.

  Derby, E.

  Abinger, L.

  Granville, E.

  Annaly, L.

  Kimberley, E.

  Belper, L.

  Minte, E.

  Blantyre, L.

  Morley, E.

  Boyle, L. (E. Cork and Orrery.) [Teller.]

  Northbrook, E.

  17

  Braye, L.

  Monson, L. [Teller.]

  Breadalbane, L. (E. Breadalbane.)

  Mostyn, L.

  Calthorpe, L.

  Ponsonby, L. (E. Bessborough.)

  Carlingford, L.

  Ramsay, L. (E. Dalhousie.)

  Carrington, L.

  Carysfort, L. (E. Carysfort.)

  Reay, L.

  Ribblesdale, L.

  Clifford of Chudleigh, L.

  Romilly, L.

  Coleridge, L.

  Rosebery, L. (E. Rosebery.)

  Fitzgerald, L.

  Sandhurst, L.

  Granard, L. (E. Granard.)

  Saye and Sele, L.

  Hammond, L.

  Strafford, L. (V. Enfield.)

  Hare, L. (E. Listowel.)

  Sudeley, L.

  Hothfield, L.

  Suftield, L.

  Howth, L. (E. Howth.)

  Sundridge, L. (B. Argyll)

  Kenmare, L. (E. Kenmare.)

  Thurlow, L.

  Kinnaird, L.

  Truro, L.

  Leigh, L.

  Tweeddale, L. (M. Tweeddale.)

  Lovat, L.

  Meldrum, L. (M. Huntly.)

  Tweedmouth, L.

  Wenlock, L.

  Monck, L. (V. Monck.)

  Wrottesley, L.

  Resolved in the Negative.
  Clause agreed to.
  Clauses 11 to 13, inclusive, severally agreed to.
  Clause 14 (Land entailed by married contract may be disentailed with certain consents).
  EARL CAIRNSsaid, it seemed to him that the clause proposed to render more definite the provisions of the 8th clause which had been objected to respecting minors. He would therefore move that the clause be struck out of the Bill.
  Moved, "To omit the Clause."—(The Earl Cairns.)
  THE EARL OF ROSEBERYopposed the Amendment, urging that the clause was not, as the noble and learned Earl opposite (Earl Cairns) seemed to think, for the purpose of rendering more definite the provisions of the 8th clause with regard to minors. Clause 14 was something more, as it was obvious that the disentailment could not be carried out without certain consents from the trustees of a marriage settlement. The clause really made definite the words employed in Clause 8 of the "Rutherford Act." Where it was said in that Act that certain things could not be done without certain consents, this Bill said that with such consent it should be done. He ventured to say that was a very small step, if it was a step at all; and he hoped that their Lordships would not have any difficulty in accepting it.
  LORD BALFOURhoped that if the clause was not struck out, their Lordships would not consent to admit it, at any rate, into the Bill, in an unamended form, because, as he understood, it enacted, to his mind very unsafely, that the heir in possession of an entailed estate, with the consent of the marriage contract trustees, might practically annul the terms of that contract by cutting off the entail. Surely a marriage settlement was made for the protection, not of the heir in possession, nor of the marriage contract trustees, but for the wife and children under the contract, and their Lordships could hardly he asked to put a clause in an Act of Parliament for the purpose of narrowing a marriage contract without the consent of the parties interested. That would be to introduce a new principle into legislation, and he trusted it would not be done.
  THE EARL OF ROSEBERYsaid, he did not propose to insist on the retention of the clause. He thought he could propose a way out of the difficulty which had been raised by following the Report of the Writers to the Signet, and declaring that Section 8 of the "Rutherford Act" should apply to this Bill. He apprehended that the noble Lords opposite would not oppose an Amendment to that effect.
  On Question? Resolved in the Affirmative.
  Clause struck out accordingly.
  Clause 15 (Powers of creditors of heir entailed to disentail).
  EARL CAIRNS, in moving to strike out the clause, said, he entirely recognized the principle that, if there was a man in possession of property which he was able to disentail on his own authority, and who contracted debts, his creditors should have the right to force him to disentail the property. That was a sound principle recognized in England. But this clause did a great deal more. It provided that, in a case where the disentail was a matter of discretion and option, and the consents of remainders were required, the creditors were to insist upon his entering into negotiations for disentail, or if not, to occupy his place and bargain for the disentail. He was not aware of any principle or precedent for a clause of that kind, in which cre-

  19
  ditors were to be in the position of their debtor for the purpose of exercising powers and rights of discretion. There could be no hardship on the creditor, for he lent the money knowing the nature of the estate possessed by his debtor.
  Moved, To omit the clause.—(The Earl Cairns.)
  THE EARL OF ROSEBERY, in opposing the Motion, said, that the main portion of this clause also was based on the "Rutherford Act," Clause 11. He would admit that persons lending money to the owners of strictly entailed estates were not deceived as to the limited nature of their debtor's rights respecting the property he held. He maintained, however, that the effect of the Amendment, if adopted, would be that an entailed proprietor would have an available asset in the property, upon which he could rely to defeat his creditors' claims altogether. It would also give to the proprietor an undeniable advantage, as it would confer upon him a choice between honesty and dishonesty, with a considerable premium upon the latter. He could not agree to the noble and learned Earl's Motion.
  LORD BALFOUR, in supporting the Motion, said, that the only class of persons who would be at all sorry if the clause was not put into the Bill would be those who lent money at extravagant rates of interest to young heirs. As their Lordships had decided that the next heir was not to have the right of pre-emption, that would be a great hardship, for it might happen that in the case of an old heir, already in possession of an entailed estate, his creditors might force him to sell the property, and the next heir, though able and willing to maintain the inheritance of his father in the family, might be, by the operation of the law, made unable to do so. He objected to the clause altogether; but if it were to be inserted, he thought that in common honesty it should be made only to have operation in respect to debts incurred after the passing of this Act. He should vote against the clause if a division were taken; but, whatever the result, he hoped that some such provision would be inserted as he had indicated.
  THE LORD CHANCELLORsaid, he trusted that the clause would be re-
  20
  tained. If the heir in possession had the power to sell an estate, subject to compensating other interests, he did not see why the creditor should not receive payment out of the debtor's interest. If it were sold, the creditor would get the capital value at the time of sale; but if it were not sold, the death of the debtor would deprive him of everything.
  EARL CAIRNSthought that the argument of the noble and learned Lord opposite was founded on a misapprehension. His (Earl Cairns's) object was to adhere to the provisions of the "Rutherford Act."
  THE DUKE OF BUCCLEUCHsaid, that as regarded the Amendment to the clause referred to by his noble Friend (Lord Balfour), it was not desirable to go into that matter until their Lordships had decided whether the clause should remain part of the Bill.
  On Question? Their Lordships divided:—Contents 67; Not-Contents 62: Majority 5.

  CONTENTS.

  Selborne, L. (L. Chancellor.)

  Carrington, L.

  Carysfort, L. (E. Carysfort.)

  Bedford, D.

  Clifford of Chudleigh, L.

  Westminster, D.

  Coleridge, E.

  Ailesbury, M.

  Erskine, L.

  Lansdowne, M.

  Fitzgerald, E

  Northampton, M.

  Granard, L. (E. Granard.)

  Carnperdown, E.

  Hammond, L.

  Derby, E.

  Hare, L. (E. Listowel.)

  Durham, E.

  Hothfield, L.

  Granville, E.

  Howth, L. (E. Hawth.)

  Kimberley, E.

  Kenmare, L. (E. Kenmare.)

  Minto, E.

  Morley, E.

  Kinnaird, E.

  Northbrook, E.

  Leigh, E.

  Sydney, E.

  Meldrum, L. (M. Huntly.)

  Yarborough, E.

  Monck, L. (V. Monck.)

  Canterbury, V.

  Monson, L. [Teller.]

  Eversley, V.

  Ponsonby, L. (E. Bessborough.)

  Gordon, V. (E. Aberdeen.)

  Ramsay, L. (E. Dalhousie.)

  Leinster, V. (D. Leinster.)

  Reay, L.

  Powerscourt, V.

  Romilly, L.

  Rosebery, L. (E. Rosebery.)

  Aberdare, L.

  Annaly, E.

  Sandhurst, L.

  Belper, E.

  Saye and Sele, L.

  Boyle, L. (E. Cork and Orrery.) [Teller.]

  Strafford, L. (V. Enfield.)

  Braye, L.

  Sudeley, L,

  Breadalbane, E. (E. Breadalban.)

  Sundridge, L. (D. Argyll.)

  Calthorpe, L.

  Thurlow, L.

  Carlingford, E.

  Truro, E.

  21

  Tweeddale, L. (M. Tweeddale.)

  Wenlock, L.

  Wrottesley, L.

  Tweedmouth, L.

  NOT-CONTENTS.

  Buckingham and Chandos, D.

  Borthwick, L.

  Northumberland, D.

  Brodrick, L. (V. Midleton.)

  Richmond, D.

  Clifton, L. (E. Darnley.)

  Clinton, L.

  Ahercorn, M. (D. Abercorn.)

  Clonbrock, L.

  Colchester, L.

  Bristol, M.

  De Freyne, L.

  Hertford, M.

  de Ros, L. [Teller.]

  Salisbury, M.

  Digby, L.

  Winchester, M.

  Douglas, L. (E. Home.)

  Foxford, L. (E. Limerick.)

  Annesley, E.

  Bandon, E.

  Gage, L. (V. Gage.)

  Beauchamp, E.

  Harlech, L.

  Cairns, E.

  Harris, L.

  Coventry, E.

  Hartismere, L. (L. Henniker.)

  Doncaster, E. (D. Buccleuch and Queensberry.)

  Hylton, L.

  Leconfield, L.

  Dundonald, E.

  Lilford, L.

  Kilmorey, E.

  Ormathwaite, L.

  Loven and Melville, E.

  Penrhyn, L.

  Lucan, E.

  Raglan, L.

  Mar and Kellie, E.

  Saltoun, L.

  Redesdale, E.

  Shute, L. (V. Barrington.)

  Romney, E.

  Rosse, E.

  Silchester, L. (E. Longford.)

  Stanhope, E.

  Stradbroke, E.

  Stewart of Garlics, L. (E. Galloway.)

  Wilton, E.

  Strathspey, L. (E. Seafield.)

  Clancarty, V. (E. Clancarty.)

  Tollemache, L.

  Cranbrook, V.

  Trevor, L.

  Hawarden, V. [Teller.]

  Tyrone, L. (M. Waterford.)

  Melville, V.

  Ventry, L.

  Abinger, L.

  Walsingham, L.

  Ardilaun, L.

  Watson, L.

  Aveland, L.

  Windsor, L.

  Balfour of Burleigh, L.

  Wynford, L.

  Resolved in the Affirmative.
  Clause struck out accordingly.
  Clauses 16, 17, and 18, inclusive, severally agreed to.
  Clause 19 (Court may prescribe manner of sale).
  On the Motion of The Lord WATSON, the following Amendments made:—In page 7, line 29, after ("time") insert ("and place"); line 32, before ("auction") insert ("public"); and in line 41, before ("auction") insert ("public").
  Clause, as amended, agreed to.
  Clause 20 (Price to be consigned).
  On the Motion of The Lord WATSON, the following Amendments made:—In
  22
  page 8, Sub-section (3), line 24, delete ("balance") and insert ("surplus"); in Sub-section (4), line 32, delete ("railways") and insert ("railway companies"); and in page 9, Sub-section (7), line 24, delete ("section") and insert ("Act").
  THE MARQUESS OF HUNTLY THE MARQUESS OF HUNTLY moved an Amendment to the effect that the costs of the application should be made a charge on the fee-simple of the entailed estate.
  Amendment moved,
  In Sub-section 9, page 10, line 7, after ("invested") insert ("or in the case of applications to charge with debts or incumbrances, shall be created a charge upon the fee of the entailed estate.")—(The Marquess of Huntly.)
  THE EARL OF ROSEBERYsaid, he would undertake to give the matter his attention, and, if necessary, bring up an Amendment on Report.
  Amendment (by leave of the Committee) withdrawn.
  Clause, as amended, agreed to.
  Amendment moved,
  After Clause 20, to insert the following Clause:—"Where any money or other property heritable or movable has been or shall be held or invested in trust for the purpose of purchasing land to be entailed, it shall be lawful for the person, who, if the land were entailed in terms of the trust, would be the heir entitled to possession thereof, to make summary application to the Court for warrant and authority to the person or persons by whom the said money or property is held in trust at the time, to deal with and apply the same or the proceeds thereof as if it were the price of entailed land sold in pursuance of this Act; and it shall be lawful for the Court to grant such warrant and authority notwithstanding any direction to the contrary contained in any will, trust, disposition, and settlement, or other deed or writing; and the person or persons by whom such money or property shall be held in trust as aforesaid, shall, after carrying into effect such warrant and authority, be discharged of the trust."—(The Earl of Galloway.)
  THE EARL OF ROSEBERYsaid, that, as far as he could understand the object of the proposed new clause, it was covered by Clause 24, which said—
  "The provisions of this Act with regard to the descriptions of securities and stocks in which the price of land sold may be invested shall apply to all entailed estate consisting of money."
  LORD WATSONsaid, he thought the proposed new clause went further than Clause 24, though he was under the im-

  23
  pression that what it provided could be otherwise secured.
  THE EARL OF ROSEBERYsaid, he would consider the matter, and if he found out that the object of the Amendment was not so covered, the noble Earl could bring it up again on Report.
  Amendment (by leave of the Committee) withdrawn.
  Clause 21 agreed to.
  Clause 22 (Disposition to be granted at sight of Court).
  On the Motion of The Lord WATSON, the following Amendments made:—In page 10, line 22, delete from ("and") online 25, to ("warrandice") on line 27, both inclusive; in line 29, delete ("a decree declaring such sums to be"); in same line, after ("or") insert ("if the Court shall declare that any sum of money shall be"); and in line 30, after ("estate") insert ("such decree").
  Clause, as amended, agreed to.
  Clause 23 (Price of land sold to remain entailed estate).
  Amendment moved,
  In page 10, line 35, at end of clause, to insert—"In the case of an application for disentail of the price of an entailed estate, or any part thereof, sold under the provisions of this Act at the instance of the heir in possession, by whom or on whose behalf the application for sale was made, it shall not he lawful for the Court to dispense with the consent of the heir-apparent or other nearest heir, or his curator ad litem appointed under this Act."—[The Earl Cairns.)
  THE EARL OF ROSEBERYsaid, he could not agree to the Amendment, to which, indeed, he had the strongest objection, on the ground that it could not answer any useful purpose.
  On Question? Resolved in the Negative.
  Clause agreed to.
  Clause 24 agreed to.
  Amendment moved,
  In page 10, after Clause 24, insert the following clause:—"In all applications for disentail or sale under this Act, where the heir in possession shall have expended sums in improving the estate which he is entitled to charge upon the entailed estate without consents, such heir shall be entitled to produce a statement of such expenditure, and upon the Court declaring such expenditure to he properly chargeable upon the estate, the amount thereof, or such portion as the Court may declare properly chargeable, shall be paid to such heir out of the price of the estate, and shall be taken into consideration in fixing the values of compensation payable to the next heirs."—(The Marquess of Huntly.)
  THE EARL OF ROSEBERYsaid, he did not think the proposed clause was a necessary one, and, therefore, he could not agree to it.
  Amendment (by leave of the Committee) withdrawn.
  Remaining Clauses agreed to.
  Schedule agreed to.
  House resumed.
  The Report of the Amendments to be received on Monday next; and Bill to be printed, as amended. (No. 191.)
  House adjourned at Seven o'clock, till To-morrow, Twelve o'clock.