COMMITTEE. (Hansard, 2 August 1887)

§ LORD BRAMWELL,
in moving to omit the words "notwithstanding any agreement to the contrary," said, that these words would open the way to fraud, in that a man might enter into a bargain with the landowner, and, having had the benefit of that bargain, might afterwards, if he thought fit, get the additional benefit given by those words. The late Lord Chancellor had said a good deal on what he called "the loose talk" indulged in upon the subject of freedom of contract. If there had been any loose talk on the part of anyone he thought it had been on the part of the late Lord Chancellor himself. He agreed that the law had refused to enforce agreements which it deemed to be contrary to public policy; but the law had never been so silly as to hold that freedom of contract was an unlawful thing. The law had never said that when a man had entered into a bargain by which he undertook certain obligations and from which he derived certain benefits, that he should be at liberty to deny his obligations. No doubt, that had been done by the Statute Law, as in the case; of that splendid effort of legislation, the Hares and Rabbits Act, and the Agricultural Holdings Act; but the Com- 879 mon Law never did any such thing. It was contended that there was no difference between the case of a farm and that of an allotment; but the difference was great. The landowner must let his land to the farmer, as he could not cultivate it himself, and if a restriction were put upon him he must let it subject to that restriction; but the owner who granted allotments granted them, he apprehended; in the immense majority of eases, for the sake of the allottee. The effect of the clause as it stood would be to prevent the granting of allotments.

THE EARL OF WINCHILSEA
observed, that the Amendment was another protest against the principle of the Bill, and as such it was impossible for him to ask their Lordships to accept it. Unless these words were retained it could not be said that provision was made for compensation in every case. If a man were permitted to contract himself out of the Bill, a loophole would be afforded which would prevent compensation being made in every case. The noble and learned Lord drew a distinction between land let to a farmer and to a cultivator of allotments, and said that in the one case the landlord let for his own benefit, and in the other for the benefit of the allotment holder. That was a mischievous distinction which did not exist in fact, as it was equally to the benefit of the landlord to let to the allotment holder as to the farmer.

§ THE EARL OF SUFFOLK
said, he wished to express his concurrence with the views of the last speaker. It was a grievance with cottagers that when they had to quit their holdings they had no right to compensation for the trees and plants they left behind them.

§ LORD BRABOURNE
said, he rose to move an Amendment providing that tenants should be entitled to claim compensation from their landlords for all fruit trees and bushes which they left growing on the land. Under the Bill the tenant could not obtain compensation unless he first obtained his landlord's written consent to plant the trees. The 880 value of the holding might be greatly improved by the trees, and it was certain that in most cases the trees would be planted without the written consent being obtained. Their Lordships should recollect that they were not dealing with large occupiers who might be trusted to secure themselves by obtaining the required consent in writing. The holders of small allotments would not do so. No doubt, the written consent should be obtained, for the erection of any buildings; but in such an ordinary matter as the planting of currant and gooseberry bushes, the labourer should surely not be deprived of compensation because he had not obtained his landlord's consent in writing to the transaction.

THE EARL OF WINCHILSEA
said, that the planting of fruit trees was a matter on which it appeared right that the landlord should have a discretion, as fruit trees planted might be a disadvantage to neighbouring allotments. Moreover, trees which when planted might be of very little value, would, after some years, become of considerable value; and he did not see any reason why the unearned increment should belong to the tenant. This was a case in which it might fairly be left to the landlord to say whether or not the trees should be planted by the tenant.

THE UNDER SECRETARY OF STATE FOR THE COLONIES (The Earl of ONSLOW)
said, he thought it desirable that fruit trees should be exempted from the matters for which the tenant should be entitled to claim compensation. Otherwise, in Herefordshire and other fruit-growing counties, considerable inconvenience would accrue to tenants who had planted trees by special arrangement with their landlord.

§ LORD BRAMWELL
remarked that it was unfortunate that the conditions of legislation were such that their Lordships were obliged to agree to that to which their judgments were opposed, for fear that the Bill should not pass. The Amendment that he wished to propose on this clause was the most reason- 881 able one in the world. As the clause stood, it would be open to justices on an ex parte application, without even notice being given to the other party, to appoint an arbitrator to assess the amount of compensation to be paid to the outgoing tenant, and the object of his Amendment was to require that notice that such an application was about to be made should be given to the other party in the cheapest and most convenient form—say, by means of a letter to be sent through the post. He had appointed hundreds of arbitrators, but he had never appointed one without notice being given to both parties; and it was only common justice that both parties should know what was about to be done in their case, otherwise the greatest enemy of one of them might be appointed to adjudicate upon his case. If it were too late for their Lordships to do what was just and right, he was very sorry for it; but, at all events, he would give their Lordships an opportunity of doing what was just and right by moving his Amendment, which was to the effect that notice should be given to one party of the intention of the other to apply to the justices to appoint an arbitrator to assess the amount of compensation.

THE EARL OF WINCHILSEA
said, he opposed the Amendment, on the ground that the arbitrator could not be appointed by the justices until the landlord and tenant had met and had disagreed, and were, therefore, aware that one of them would make the application. The tenant would probably have to consult a lawyer as to the form of the notice, and would have to pay him for his advice 6s. 8d., which would amount to a large percentage upon the sum in dispute.

§ THE LORD CHANCELLOR (Lord HALSBURY)
said, he also opposed the Amendment, on the ground that when the arbitrator was appointed the other party would have notice of the fact.

§ LORD BRABOURNE
observed, that the act of the justices would be merely a ministerial one. It would be done upon the application of either party 882 without prejudice to the other. It could not be opposed, even if the other party had full notice, since the provision in the Bill was that "the justices shall appoint an arbitrator" upon application; and the justices, restrained, moreover, as they were by the clause from appointing an interested party, might surely be trusted to select a proper person for the office.

§ LORD BRAMWELL
said, that it appeared to be almost idle for him to trouble their Lordships by moving Amendments upon this Bill; but here, again, it appeared to him to be a matter of common justice that he should move an Amendment upon this clause. Under the clause as it stood execution might issue directly the report of the arbitrator was made, without the party adversely affected by it being allowed to show cause why it should not be carried into effect. The party so affected might be able to show that he was not the landlord or that he was not the tenant, or that he had a sot off, or that he had any other substantial defence; yet, as the Bill stood, he would not be able to set it up against the arbitrator's award. He proposed to amend the clause by moving the insertion of words which would give the party adversely affected by the award an opportunity of setting up any substantial defence he might have to the proceedings before execution could issue.

§ LORD HALSBURY
agreed that the words suggested by the noble and learned Lord would be clearer; but they were not really necessary.