HL Deb 17 July 1882 vol 272 cc685-93

Amendments reported (according to order).


said, he wished to draw the attention of their Lordships to the large number of measures—14, he believed—still on the Statute Book dealing with entail in Scotland. Those Acts required to be consolidated; and it would be well if the Government would give their attention to the question of the desirability of consolidating them. The effect of the present condition of affairs was, that in every case in which an owner of land, or person interested, wished to bring the law into operation, he would be obliged to call in the services of a lawyer, not only at great inconvenience, but very often at great expense, in order that none of the provisions of the Acts might be omitted from consideration. He did not suppose the Government could move in the matter at the present time; but he wished to impress upon them the great desirability of consolidating the law in this regard.


said, he fully concurred in the observations of his noble Friend (the Marquess of Tweeddale).


said, he would at once admit that it would be very desirable if steps could be taken to bring about a consolidation of the Law of Entail in Scotland. With regard to the subject complained of by the noble Marquess (the Marquess of Tweeddale) as to the expense necessarily resulting from employing a gentleman of the Legal Profession, of course there was always a certain amount of work which could only be done by legal advisers. The noble Earl who spoke last (the Earl of Minto) appeared to think that the task of consolidation would be an easy one; but he (the Earl of Rosebery) could not agree with that, because, in the experience they had gathered from drawing the present Bill, they had been obliged to refer to previous Acts, and it was at once apparent to them that the codification of those Acts would be a work of considerable time and labour. After the passing of the new Act, however, probably it would not be so difficult to ascertain the state of the law as it was before; but still it would not be an easy matter. He would promise to submit the matter to the Scotch Legal Advisers of the Crown, and he hoped those hon. and learned Gentlemen would see their day at some future, but not very distant time, to carry the suggestion of the noble Marquess as to consolidation into effect.

Clause 2 (Definitions).

On the Motion of The Earl of ROSEBERY, the following Amendment made:—In page 1, line 9, after the second ("Acts"), insert ("and sections of Acts.")

Clause, as amended, agreed to.

Clause 6 (Provisions for applications for authority to borrow, charge, lease, and feu).

On the Motion of The Earl of ROSE-BERY, the following Amendments made:—In page 2, line 29, leave out ("expedient") and insert ("for the public advantage and not prejudical to the estate"); line 31, leave out ("or nominal"); line 32, add new paragraph— Provided that it shall not be lawful for the applicant to take any grassum or consideration for granting such fees or lease other than the feu duty or the rent, and if any such grassum or consideration shall be taken such feu or lease shall he null and void; line 33, after ("feu") insert ("or grant leases.")

Clause, as amended, agreed to.

Clause 7 (Lease may be renewed throe years before expiration).

On the Motion of The Lord WATSON, the following Amendment made:—In page 2, line 38, leave out ("fourteen"), and insert ("seven.")

THE MARQUESS OF TWEEDDALE moved an Amendment in respect of renewals of leases before their expiration.


said, that in the Bill, as originally drawn, it had been proposed that a lease should be renewable to the tenant and his heirs at any time within "three years" previous to the expiration; but "two years" had been substituted for three, and power given to let to any tenant. He could not agree to the Amendment, as he believed that every facility should be given to those interested to renew their leases. He failed to see why the right should be restricted to the tenant in possession and his heirs, because the object was to provide for the letting of the property to the best advantage.


said, that, in his view, to settle the renewal of a lease before the expiration of the old lease was contrary to the whole spirit of the law in Scotland. That would be interfering with the liberty of a landlord, who might desire to retain a particular person on his land. The end of the tenancy would be the time to make these arrangements.


said, in his opinion, it would not be fair to take away any of a tenant's existing rights.

Amendment (by leave of the House) withdrawn.

Clause, as amended, agreed to.

Clause 13 (Provision for disposal of fund deposited or invested after fourteen years).

On the Motion of The Earl of ROSEBERY, the following Amendment made:—In page 5, line 24, leave out ("disentail"), and insert ("original application.")

Clause, as amended, agreed to.

On the Motion of The Earl of ROSEBERY, the following Now Clause (a) was added after Clause 13:—

(Settlements by marriage contract not to be disappointed.)

"Where any heir of entail in possession of an entailed estate, or the heir apparent to such estate, shall, together or separately, have secured by obligation in any marriage contract the descent of such estate upon the issue of the marriage in reference to which such contract is entered into, it shall not be competent for such heir of entail in possession or heir apparent, or either of them, to apply for or to con-sent to the disentail of such estate until there shall be horn a child of such marriage capable of taking the estate in terms of such contract, and who by himself or his guardian shall consent to such disentail, or until such marriage shall be dissolved without such child being born, unless the justice or justices named in such contract, or the party or parties at whose sight the provisions of the contract are directed to be carried into execution, shall concur in such application or consent."


, in moving the insertion of a new clause (b,) to follow the one just inserted in the Bill, said, that when the Bill was in Committee the noble and learned Earl opposite (Earl Cairns) had taken a strong objection to the clause as it then stood, and it was considered advisable to strike out the section, in order that the matter might be reconsidered at this stage. He (the Earl of Rosebery) must confess he attached great importance to the clause, and it had been reinstated with well-considered Amendments, which he believed would go far to obviate the objections which had been expressed. He did not, however, think that the words he proposed would carry out the arrangements the noble and learned Earl was willing to accept. The whole question had been argued on a previous occasion, so that it would not be necessary for him to repeat what he had already said in favour of the proposal. He would merely point out that, unless there was some such provision imported into the Bill, no creditor would either advance money or supply goods; and, if they did not provide such a clause, the proprietor only would be in a position to sell the estate. He thought their Lordships would consider the clause to be an equitable one, and he hoped they would accept it.

Moved, After the new Clause inserted after Clause 13, to insert the following Clause:—

(Powers of creditors of heir entitled to disentail,)

"Where any heir of entail in possession is entitled to disentail the estate, with the consent of any other heir or heirs, or upon such consent being dispensed with by the Court, any creditor of such heir in possession in respect of debt incurred after the passing of this Act who has obtained decree against him for payment and charged upon the decree, shall, in the event of the debt so incurred not being paid for six months after the expiration of the charge, be entitled to apply to the Court, and the Courtshall, if the said debt is not paid within three months after the date of the application, proceed as if the heir in possession had made application to disentail the estate, and shall ordain him to execute an instrument of disentail of the estate, or of such parts thereof as may be necessary for payment of such debt; and if he refuses or fails to do so the Court may grant authority to the clerk of Court to execute such instrument, and after provision is made for the interests of any other heirs of entail whose consents are necessary in the application, and any other creditors whose debts are secured on the estate, the creditor shall be entitled to affect the estate for payment of such debt, and shall have the same rights and interests therein as if an instrument of disentail had been executed and recorded by the heir in possession himself.

"If the estates of such heir of entail in possession of an entailed estate shall be sequestrated for debt incurred after the passing of this Act, the trustee on his sequestrated estates shall be entitled to apply to the Court for authority to disentail the estate, and the Court shall forthwith proceed as if such heir had made application to disentail the estate, in the same manner as is directed in this section with regard to an application by a creditor."—(The Earl of Rosebery.)


said, he must point out that the original clause included creditors whose debts were incurred before the passing of the Act, whereas the present clause was limited to creditors in debts incurred after the passing of the Act. That was certainly an Amendment. As the clause stood originally in the Bill, it would have acted very unjustly, and it was accordingly struck out. He (Lord Watson), following the example of the noble Earl (the Earl of Rosebery), would refrain from arguing the question further than to observe that in the case of an entailed proprietor the position of the debtor was perfectly well known. As he had previously opposed the Amendment on general principles, he should not occupy their Lordships' time further, but would state that, in his opinion, if the Amendment were accepted the clause, as now framed, would be quite unworkable.


said, that the last objection of the noble and learned Lord opposite (Lord Watson) would be a most formidable one, if it were well founded. He (the Lord Chancellor), however, believed that it was not well founded. He believed that the principle contained in the clause was a just and equitable one, and that the creditors should exercise the same power on the estate as their debtor, when he had a right to ask for its disentailment. The law was perfectly well settled in England, and creditors, under similar circumstances, could obtain a remedy against the tenant in tail in possession, although the effect would be not, as under this Bill, to buy out, but entirely to defeat the succession of the next heir.


said, he did not think the new clause would effect the object the noble Earl (the Earl of Rosebery) had in view. No doubt, the creditors would well study the question, and there would really be no question of their disappointment. The next heir would take possession of the property, subject to the engagements to other members of the family, and to engagements with other persons afterwards. Now, by the clause it was proposed that, under all circumstances, he should be forced to oust the members of his family in favour of other parties having claims against him. It seemed to him that, in cases of that kind, the heir should be given a right of election. The clause, in his opinion, ought not to be adopted.


said, he was much grieved and surprised that the noble Marquess opposite (the Marquess of Salisbury) should have brought forward such an immoral doctrine. He (the Earl of Rosebery) was quite aware of the fact that there were some engagements entered into by the heir with the other members of the family; but engagements with the family should only run a reasonable time. It was all very well to argue this question on the ground of honesty; but, besides the ground of honesty, there was another ground which could not be lost sight of, and that was the ground of expediency. If a man who had the power of disposing of an estate chose to run into debt, and thereby become involved in difficulties, surely he ought not to be allowed to avoid disposing of his property. Supposing a man were owing £5,000 upon an estate, and that he was able to keep his creditors out of it by simply refusing to disentail, would that be an act of justice to the creditors? Would it be just to deliberately repudiate the power of paying debts by a simple application to the Court of Chancery? On the grounds of morality and justice, he hoped their Lordships would accept the proposal of the Government to insert the clause. If the clause were not agreed to, and if their Lordships should thus repudiate the power of paying their debts on application, the enemies of their Order would be furnished with a very serious argument against them.

On Question? Their Lordships divided:—Contents 52; Not - Contents 67: Majority 15.

Selborne, L. (L. Chancellor.) Morley, E.
Northbrook, E.
Saint Germans, E.
Somerset, D. Sydney, E.
Ailesbury, M. Canterbury, V,
Northampton, M. Eversley, V.
Gordon, V. (E. Aberdeen.)
Camperdown, E.
Clarendon, E. Leinster, V. (D. Leinster.)
Dartrey, E.
Derby, E. Powerscourt, V.
Kimberley, E.
Minto, E. Aberdare, L.
Annaly, L. Ramsay, L. (E. Dalhousie.)
Boyle, L. (E. Cork and Orrery.) [Teller.]
Reay, L.
Braye, L. Rosebery, L. (E. Rosebery.)
Calthorpe, L.
Carlingford, L. Sandhurst, L.
Carysfort, L. (E. Carysfort.) Saye and Sele, L.
Skene, L. (E. Fife.)
Churchill, L. Strafford, L. (V. Enfield.)
Coleridge, L.
Crewe, L. Stratheden and Campbell, L.
De Mauley, L.
Fitzgerald, L. Sudeley, L,
Houghton, L. Thurlow, L.
Howth. L. (E. Howth.) Truro, L.
Lawrence, L. Tweeddale, L. (M. Tweeddale.)
Leigh, L.
Meldrum, L. (M. Huntly.) Tweedmouth, L.
Waveney, L.
Monson, L. [Teller.] Wolverton, L.
Richmond, D. Brabourne, L.
Brodrick, L. (V. Midleton.)
Bath, M.
Hertford, M. Colchester, L.
Salisbury, M. Colville of Culross, L.
Denman, L.
Amherst, E. de Ros, L. [Teller.]
Bathurst, E. Digby, L.
Carnarvon, E. Dunsany, L.
Clonmell, E. Ellenborough, L.
Doncaster, E. (D. Bucclench and Queensberry.) Foxford, L. (E. Limerick.)
Gage, L. (V. Gage.)
Feversham, E. Harlech, L.
Haddington, E. Harris, L.
Kilmorey, E. Hartismere, L. (L. Henniker.)
Leven and Melville, E.
Lucan, E. Inchiquin, L.
Mar and Kellie, E. Lamington, L.
Milltown, E. Leconfield, L.
Mount Edgcumbe, E. Manners, L.
Onslow, E. O'Neill, L.
Pembroke and Montgomery, E. Oranmore and Browne,
Powis, E. Penrhyn, L.
Redesdale, E. Poltimore, L.
Romney, E. Saltoun, L.
Rosse, E. Shute, L. (V. Barrington.)
Rosslyn, E.
Sandwich, E. Silchester, L. (E. Longford.)
Wharncliffe, E.
Wilton, E. Stewart of Garlies, L. (E. Galloway.)
Cranbrook, V. Strathspey, L. (E. Seafield.)
Hardinge, V.
Hawarden, V. [Teller.] Talbot de Malahide, L.
Hutchinson, V. (E. Donoughmore,) Trevor, L.
Ventry, L.
Templetown, V. Watson, L.
Windsor, L.
Abinger, L. Wynford, L.
Blantyre, L.

Resolved in the negative.

Clause 18 (Price to be consigned. Where price paid in consols, dividends to be paid to applicant and his successors. Where estate encumbered. Where applicant desires investment, trustees may be appointed. Powers of trustees. Purchase of lands. Investment after applicant's death.)

On the Motion of The Earl of ROSEBERY, the following Amendment made:—In page 7, line 26, leave out ("subsection"), and insert ("sub-sections.")

Clause, as amended, agreed to.

Clause 20 (Disposition to be granted at sight of Court).

On the Motion of The Earl of ROSE-BERY, the following Amendment made:—In page 9, line 25, after ("transaction"), insert— ("And in particular a clause providing that the purchaser shall have warrandice against the price, so long as the same shall remain extant, deposited or invested as aforesaid, and binding the applicant and his heirs of provision in warrandice to the extent of the shares of the price received by them respectively, in the event of the price being disentailed and divided among the applicant and his heirs of provision according to their respective interests therein.")

Clause, as amended, agreed to.

On the Motion of The Marquess of HUNTLY, the following new Clause was inserted after Clause 18:— 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 be 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.

On the Motion of The Earl of GALLOWAY, the following new Clause was inserted after Clause 20:— Where any money or other property heritable or moveable 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.

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