§ House in Committee (on Re-commitment) according to Order.
§ Equitable Jurisdiction
§ Clause 20 (Power of court to stay eviction).
§ LORD FITZGERALDsaid, he rose to move an Amendment to the clause which would have the effect of preventing landlords from evading the equitable jurisdiction intended to be given by the clause by having recourse to an action for the recovery of rent instead of to an action of ejectment, and thus rendering the equitable jurisdiction of the Court inoperative. If a landlord had two tenants each owing £50, he might bring an action of ejectment for non-payment of rent against one, and the tenant in that case would be entitled to relief under the equitable jurisdiction of the Court. But the landlord, in the case of the other tenant, might bring an action for recovery of rent, obtain a speedy judgment, issue execution, and sell the tenant's interest or purchase it in at a nominal price. The tenant so proceeded against would not be entitled to equitable relief. There appeared to be no good reason why one of these tenants should be entitled to equitable relief more than another, and his Amendment sought to remove the objection in this respect.
§ Amendment moved, in page 12, line 15, after ("recovery") to insert ("of the rent ".)—(The Lord Fitzgerald.)
§ THE LORD PRIVY SEAL (Earl CADOGAN)said, he could not accept the Amendment. It imposed an undue limitation that would defeat the object of the clause.
§ LORD HERSCHELL, in supporting the Amendment, said, that the object of the clause was to enable the County Court Judge to exercise an equitable jurisdiction of restraint when a landlord was 1680 harshly exercising his power. If the landlord wished to exercise his right unreasonably and harshly, the Government left open to him a means of so doing which would absolutely destroy the object of the clause. The landlord could bring his action for non-payment of rent and could sell the tenant's interest without interference. That was a course not unfrequently adopted, and would, at the present moment, be universally adopted by harsh landlords in order to effectually dispose of their tenants, unless the Amendment was adopted. The clause would be absolutely valueless, if landlords would never proceed by action for ejectment, but by action for recovery of rent.
§ THE LORD CHANCELLOR OF IRELAND (Lord ASHBOURNE)said, that the clause was intended to deal with the landlords in the exercise of their special power as landlords. The Amendment took up very different grounds, and proposed to tie the landlord's hands when they put in force the remedy of ordinary creditors. This, while tying the hands of the landlords, would leave ordinary creditors free.
§ LORD FITZGERALDsaid, that he wished to prevent this clause—admirably devised for the good of the tenant—from being rendered of no avail. As had been pointed out unless the Amendment was accepted, landlords, instead of bringing actions of ejectment, would bring actions for recovery of rent, and thus escape the equitable jurisdiction. He, himself, had had occasion to try 13 cases in one day, in which a noble Lord brought actions for recovery of rent, secured judgment, and obtained from the Sheriff conveyances of the tenants' interests, thereby gaining in one day absolute control over the interests of the tenants. If this Amendment was not accepted the clause would be a delusion.
§ EARL SPENCERsaid, he hoped their Lordships would not be guided entirely by the arguments used by the noble Earl opposite (Earl Cadogan) and the noble and learned Lord the Lord Chancellor of Ireland. There was a great deal to be said in favour of the Amendment. The fact was, that if these proceedings became at all common in Ireland the benevolent intentions of Her Majesty's Government would really be defeated; because landlords, instead of proceeding as they did now by means of 1681 ejectment for non-payment of rent, would adopt the other course, and in that case the beneficial intention of this clause would be entirely lost. He hoped the Government would not absolutely refuse to accede to the Amendment, but would consider it really in the interest of their own Bill. If they did not, the operation of this clause might be made nugatory.
§ THE PRIME MINISTER AND SECRETARY OF STATE FOE FOREIGN AFFAIRS (The MARQUESS of SALISBURY)said, that the object of the Bill and the Government was to deal with an evil which existed and which was very conspicuous. That evil had done, and was at present doing a great deal of harm. It was the tendency of a very small number, but still of a certain number, of Irish landlords to have recourse to evictions which, though just in law, were unreasonable and harsh in practice. That was the evil with which the Bill dealt. No one denied that it existed. But now they were asked to extend the Bill to an evil which did not exist, or that did not exist to any noticeable extent. They were asked to deal with a possible action on the part of landlords to obtain the same results through a very circuitous and costly process. If they were to be asked to do this, he must ask the noble and learned Lord opposite (Lord Fitzgerald) whether his Amendment went far enough? If the tenant was to be prevented, in all circumstances, from having his holding sold in satisfaction of his debts, there would not be a vestige or shadow of reason why the landlord should be the sole victim of that process; it must be extended to every tradesman—to the keeper of the whisky shop and to the gombeen man; There was not a shadow of a defence for limiting it to the landlord. The noble and learned Lord did not propose to take that course of extending it. The truth was, they were dealing by this Bill with an exceptional privilege granted to landlords only—namely, the power of evicting for non-payment of rent. They were now invited to go a step further, and to deal with a remedy which was open to all classes of Her Majesty's subjects alike as against the man who did not pay his debts. It was a tremendous demand to make upon them, and he could not imagine the circumstances in which it 1682 would be wise to concede it, even if it were made general. But it would be nothing but the grossest and most grotesque partiality to limit it to the landlord alone.
§ LORD FITZGERALDsaid, the noble Marquess opposite (The Marquess of Salisbury) did not trouble himself to read the Irish newspapers, or he would see that cases of the kind he had referred to were of frequent occurrence. The Sheriff gave notice of the sale of a holding; a turbulent crowd attended, and eventually, the tenant-right was knocked down at a nominal sum to the landlord. He might also point out that in case an ordinary creditor obtained an execution, he would sell the tenant's right only subject to the payment of the rent due to the landlord, so that the landlord was no loser. The landlord was secured as against the action of an ordinary creditor, and there would be no harm in restraining him from the harsh exercise of his rights. Unless their Lordships accepted the Amendment the clause would be but a sham, and he was certain that their Lordships did not so intend.
LORD INCHIQUINsaid, the Bill dealt hardly with landlords in many respects, and they were entitled to some consideration for not opposing it, as they might have done on the second reading. If this clause was altered, as proposed by the Amendment, the effect would be for a long time to prevent landlords getting any rent whatever. The only safeguard they had left was this power of sale.
§ On Question? Their Lordships divided:—Contents 26; not-Contents 128: Majority 102.
1684| CONTENTS. | |
| Northampton, M. | FitzGerald, L. [Teller.] |
| Ripon, M. | Hamilton of Dalzell, L. |
| Granville, E. | Herschell, L. |
| Kimberley, E. | Houghton, L. |
| Morley, E. | Howth, L. (E. Howth.) |
| Spencer, E. | Monkswell, L. [Teller.] |
| Strafford, E. | Ponsonby, L. (E. Bess-borough.) |
| Sydney, E. | |
| Rosebery, L. (E. Rose-bery.) | |
| Oxenbridge, V. | |
| Powerscourt, V. | Sandhurst, L. |
| Sudeley, L. | |
| Boyle, L. (E. Cork and Orrery.) | Thring, L. |
| Vernon, L. | |
| Braye, L. | Wolverton, L. |
| Burton, L. |
| NOT-CONTENTS. | |
| Halsbury, L. (L. Chancellor.) | Balfour of Burley, L. |
| Belper, L. | |
| Cranbrook, V. (L. President.) | Blantyre, L. |
| Bolton, L. | |
| Cadogan, E. (L. PrivySeal.) | Bramwell, L. |
| Braybrooke, L. | |
| Brodrick, L. (V. Midleton.) | |
| Buckingham and Chandos, D. | |
| Brougham and Vaux, L. | |
| Grafton, D. | |
| Leeds, D. | Calthorpe, L. |
| Westminster, D. | Carysfort, L. (E. Carysfort.) |
| Abercorn, M. (D. AberCorn.) | Castletown, L. |
| Chelmsford, L. | |
| Bristol, M. | Churchill, L. |
| Exeter, M. S. | Clanbrassill, L. (E. Roden.) |
| Salisbury, M. | |
| Clements, L. (E.Leitrim.) | |
| Annesley, E. | |
| Bandon, E. | Clifton, L. (E. Darnley.) |
| Beauchamp, E. | |
| Belmore, E. | Clinton, L. |
| Bradford, E. | Cloncurry, L. |
| Brownlow, E. | Colchester, L. |
| Coventry, E. | De Ros, L. |
| Dartmouth, E. | De Vesci, L. (V. de Vesci.) |
| Dartrey, E. | |
| Devon, E, | Deramore, L. |
| Dundonald, E. | Digby, L. |
| Feversham, E. | Dinevor, L. |
| Kilmorey, E. | Ellenborough, L. |
| Leven and Melville, E. | Elphinstone, L. |
| Lindsay, E. | Fermanagh, L. (E. Erne.) |
| Lovelace, E. | |
| Lucan, E. | Foxford, L. (E. Limerick.) [Teller.] |
| Mar, E. | |
| Mar and Kellie, E. | Gago, L. (V. Gage.) |
| Northbrook, E. | Grimthorpe, L. |
| Onslow, E. | Harris, L. |
| Orkney, E. | Hillingdon, L. |
| Pembroke and Montgomery, E. | Hopetoun, L. (E. Hopetoun.) |
| Portsmouth, E. | Inchiquin, L. |
| Ravensworth, E. | Keane, L. |
| Romney, E. | Kenlis, L. (M. Head-fort.) |
| Rosse, E. | |
| Stanhope, E. | Kintore, L. (E. Kintore.) [Teller.] |
| Strathmore and King-horn, E. | |
| Lamington, L. | |
| Tankerville, E. | Lawrence, L. |
| Verulam, E. | Leconfield, L. |
| Waldegrave, E. | Lovel and Holland, L. (E. Egmont.) |
| Yarborough, E. | |
| Lyveden, L. | |
| Bangor, V. | Macnaghten, L. |
| Clancarty, V. (E. Clan-carty.) | Massy, L. |
| Midleton, L. | |
| Cross, V. | Minster, L. (M. Conyngham.) |
| Exmouth, V. | |
| Gough, V. | Monteagle of Brandon, |
| Hawarden, V. (E. de Montalt.) | L. |
| Moore, L. (M. Drogheda.) | |
| Sidmouth, V. | |
| Torrington, V. | Northington, L, (L.Henley.) |
| Bangor, L. Bp. | Poltimore, L. |
| Saltersford, L. (L.Courtown.) | |
| Abinger, L. | |
| Alington, L. | Shute, L. (V, Barrington.) |
| Ashbourne, L. |
| Sinclair, L. | Tredegar, L. |
| Stanley of Alderley, L. | Truro, L. |
| Stanley of Preston, L. | Tweedmouth, L. |
| Stewart of Garlies, L. (E. Galloway.) | Ventry, L. |
| Wantage, L. | |
| Stratheden and Campbell, L. | Watson, L. |
| Wemyss, L. (E.Wemyss.) | |
| Sudley, L. (E. Aryan.) | |
| Wigan, L. (E. Craw-ford and Balcarres.) | |
| Sundridge, L. (D. Argyll.) | |
| Windsor, L. | |
| Talbot de Malahide, L. | Winmarleigh, L. |
| Zouche of Haryngworth, L. | |
| Templemore, L. |
§ Amendment disagreed to.
§ On the Motion of The Viscount DE VESCI, the following Amendment made:—In page 12, line 22, after the words ("believing that,") by inserting ("having regard to the interests of both the landlord and the tenant").
§ LORD CASTLETOWNsaid, he rose to move an Amendment, the object of which was to provide that in the case of a tenant who was unable to pay arrears of rent, the Court might "upon application by the tenant," order that the arrears of rent and the costs, or such sum in satisfaction thereof as might be agreed on between the parties, should be paid by such instalments as the Court might appoint. The noble Lord argued in favour of the Amendment in connection with another which he had on the Paper calling for a full disclosure of the tenant's affairs and insolvency by means of a filed affidavit. He was of opinion that a tenant should file an affidavit giving a full disclosure to the Court of the particulars of the debts due by him, whether secured or unsecured, his assets, and any interest he might have in his holding.
§ Amendment moved, in page 12, subsection (1), line 25, before the word ("order"), insert ("upon application by the tenant").—(The Lord Castletown.)
§ THE LORD PRIVY SEAL (Earl CADOGAN)said, the noble Lord had given good reasons for his second Amendment, and the Government were prepared to accept it. They could not, however, accept the Amendment just moved.
LORD FTIZGERALDsaid, that a tenant might neither be bankrupt nor insolvent, but still unable to pay at that particular juncture. In that case an extension of time would be highly desirable; but as matters stood the tenant was called upon to make a complicated 1685 affidavit. The noble Lord was really anticipating the Bankruptcy Law.
§ Amendment (by leave of the Committee) withdrawn.
§ LORD FITZGERALDsaid, he rose to move an Amendment with the object of providing that in the case of a tenant who could not pay his arrear claims the Court might order that the arrears of rent and costs, or such sum in satisfaction thereof as might be agreed on between the parties, "or in default of agreement as shall be fixed by the Court," should be paid by such instalments as the Court might appoint. Such a provision had worked well in the case of the crofters, and in his opinion the powers conferred on the Crofter Commission in this respect should be granted to the County Court Judges in Ireland.
§ Amendment moved, in page 12, line 26, after ("parties"),insert ("or in default of agreement as shall be fixed by the Court.")
§ EARL CADOGANsaid, it might assist their Lordships in the discussion of these clauses, if he stated that it was quite impossible for the Government to give up any part of the equitable jurisdiction which the Bill proposed to invest in the Court of Bankruptcy. A tenant who by reason of his insolvency claimed the assistance of the Jaw rendered himself liable to proceedings in Bankruptcy, and should therefore show the genuineness of his inability to pay rent. The Amendment would introduce a very objectionable distinction which would result in a general and annual revision of judicial rents. Under the circumstances, the Government must ask the House to reject the Amendment.
§ Amendment negatived.
§
Amendmentmoved,
In page 12, subsection (1), line 27, to add, after the word ("appoint,")—("Upon any such application the tenant shall in the prescribed manner file an affidavit making full disclosure and giving particulars of the debts duo by him, whether secured or unsecured, and, if secured, the nature of any such security, and of his assets, whether consisting of money or securities for money, the value of the interest in his holding, his farming stock and chattels of every description, whether in his own hands or in those of any other person on his behalf.")—(The Lord Castletown.)
§ LORD ASHBOURNEsaid, that in accordance with the promise already given by his noble Friend the Lord 1686 Privy Seal (Earl Cadogan), he would accept the Amendment in principle. Its terms would, however, require re-casting, and he would suggest as perhaps the most convenient course that the Amendment so re-cast should be presented on Report. He thought it would be wiser, instead of the words of the noble Lord, to indicate that the affidavit should be in a prescribed form setting forth prescribed particulars which would give the fullest information in order to enable the Court to come to a fair decision.
§ LORD CASTLETOWNsaid, he was willing to comply with the suggestion of his noble and learned Friend, and would withdraw his Amendment.
§ Amendment (by leave of the Committee) withdrawn.
THE DUKE OF ABERCORN, in moving, as an Amendment, to insert as a Proviso to the 1st subsection of Clause 20—
Provided, however, that the execution of the judgment for any balance that may remain due on account thereof shall not he stayed for a longer period than eighteen months from the date there of,said, that the object of the Amendment was to prevent a County Court Judge from having the power to fix an unduly long period for payment of instalments. He might conceivably fix a period as long as 5 years, which would be very inconvenient in the interest of the landlord.
§
Amendment moved,
In sub-section (1), line 27, after ("appoint"), insert ("Provided, however, that the execution of the judgment for any balance that may remain due on account thereof shall not be stayed for a longer period than eighteen months from the date thereof ").—(The Duke of Abercorn.)
§ EARL CADOGANsaid, he hoped the noble Duke would not press the Amendment. The case put was an extreme one, and where the power was purely discretionary it seemed useless to fix such a limitation. Moreover, the very mention of a period of 18 months might induce the Judge to think that in most cases he ought to give it.
§ Amendment (by leave of the Committee) withdrawn.
§
THE DUKE OF ABERCORN moved to insert the following Proviso at the end of the section:—
Provided also, that where the landlord has offered to accept in full satisfaction of the arrears of rent such lesser sum, payable either
1687
in one payment or by instalments as the Court shall think reasonable, and the tenant has refused such offer, no stay of execution shall be granted under this section.
The effect of the Amendment would be to induce the landlord to make a reasonable offer to his tenant, and also to deter tenants from refusing or combining together to refuse to accept any fair offer from the landlord. The effect, therefore, would be to prevent litigation.
§
Amendment moved,
In sub-section (l),line 27, after("appoint"), insert ("Provided also, that where the landlord has offered to accept in full satisfaction of the arrears of rent such lesser sum, payable either in one payment or by instalments, as the Court shall think reasonable, and the tenant has refused such offer, no stay of execution shall be granted under this section").—(The Duke of Abercorn.)
THE EARL OF BELMOREsaid, he should support the Amendment, which, in his opinion, would tend to prevent litigation, and enormous expenditure in the way of costs. The costs in bankruptcy in the now well-known case of "O'Grady v. Maroney," were said to be considerably in excess of the rent due. The Amendment of his noble Friend was in no way hostile to the Bill.
§ EARL CADOGANsaid, that any friendly arrangement between a landlord and his tenant calculated to prevent them entering upon legal proceedings undoubtedly must have their best sympathy. On the whole, while he had some doubt as to the wording as to reference of payment by instalments was legal, he was prepared to accept the Amendment, subject to a recasting of the words, if necessary, upon Report.
§ Amendment agreed to.
§ LORD FITZGERALDsaid, he begged to move an Amendment to modify the second sentence of the 2nd sub-section of this clause, that it should read thus—
If default is made in complying with the order of the Court for the payment of the first or any subsequent instalment, the stay upon the execution of the judgment shall be removed, and it may thereupon be executed in due form of law.The Amendment was intended to meet the case where a tenant, unable to pay the full amount from no fault of his own, was, nevertheless, willing to pay by instalments; if such a tenant failed to pay a subsequent instalment thereupon, the landlord would be entitled to 1688 call upon the Court to put him in possession, to eject the tenant, and deprive him entirely of his right to reside there. By a peculiarity of the law in Ireland, this power might operate harshly upon the tenant. The right of execution as at present given to the landlord was unnecessarily hard upon the tenant, and time should be given, seeing that the tenant would be compelled to pay all—interest, principal, and redemption.
§ Amendment moved, in page 12, leave out lines 33 and 34, and insert (" and it may thereupon be executed in due form of law").—(The Lord Fitzgerald.)
§ LORD ASHBOURNEsaid, that this Amendment was one of great importance, and would, no doubt, commend itself to many. There was a difference, however, between the cases where the time given by the Courts was a long period, such as nine or ten months or a year, and cases where the stay of execution was granted for only a short time. In cases where the time for paying the instalment was only for a few weeks, it was not unreasonable that this stay of execution should be granted. But if they took the case which was far more likely to arise, of a stay of execution for nine or ten months or a year, then it would be a question which would require examination whether the tenant should, at the end of that time, be at liberty to start with the right of six months' further relief.
§ LORD HERSCHELLsaid, he thought that if there were two classes of cases so extremely different they might be dealt with differently. What they had to consider was in what position the tenant would be put by this clause. It was desired to make it a real protection to the tenant, and he would point out that if a tenant were only allowed three months by the County Court Judge to pay an instalment which he was really unable to pay, he would be in a worse position than if he had been allowed by the landlord to remain for six months.
§ EARL CADOGANsaid, that, in his opinion, the Amendment was a fair one, and he had no objection, on the part of the Government, to accept it.
§ Amendment agreed to.
§
Amendment moved,
In page 12, at end of sub-section (2), line 38, add—(" Provided that upon any such sale all
1689
arrears of rent and the coats then due to the landlord shall be paid in full out of the purchase-money, and shall be the first charge thereon.")—(The Earl of Kilmorey.)
§ EARL CADOGANsaid, he could not accept the Amendment. It was unnecessary, for the Land Act of 1881 had already made the provision.
§ Amendment (by leave of the Committee) withdrawn.
§ Clause, as amended, agreed to.
§ Clause 21 (Jurisdiction in bankruptcy by consent).
THE EARL OF KILMOREY, in moving, in page 13, line 19, after "execution," to omit the following words:—
And may, where the holding is subject to a statutory term, fix the rent to be paid for the residue of such statutory term then unexpired, at such moment as, in the opinion of the court, a thrifty and industrious tenant might reasonably be expected continuously to pay,said, that there was not a single point in the whole Bill to which there was greater unanimity of objection than to permitting the County Court Judge to tamper with the rents fixed by the Land Commissioners. One peculiarity of our legislation with regard to Ireland was a want of finality which prevented that confidence which ought to be felt in carrying out remedial measures. He would ask Her Majesty's Government not to cause that confusion which would be sure to arise from allowing the Bill before the House to override the Act of 1881. A County Court Judge was a lawyer pure and simple, and probably had no knowledge whatever of agriculture or of the value of land. On the other hand, two at least of the Land Commissioners were supposed to be well versed in the survey and valuation of land. Therefore, it would be very unfair to allow one man to upset the judgment come to by properly qualified persons. If any County Court Judge was allowed to have this unlimited power of revising rent continually, there would be no finality, and the idle and drunken tenant would be more favoured than the sober and industrious. He would appeal to his noble Friend (the Lord Privy Seal) to spare the Irish landlords at least the hardship inflicted by this part of the clause.
§ Amendment moved, in sub-section (2), line 19, omit words ("And may, where 1690 holding is subject to a statutory term ") to the word (" pay ").—(The Earl of Kilmorey.)
§ EARL CADOGANsaid, he was sorry to state that the Government had not found opinion more unanimous upon any point in the Bill than on the proposition to which his noble Friend objected. He (Earl Cadogan) stated, when he brought in this Bill, that Her Majesty's Government were very unwilling to give a power to revise any judicial rents fixed by statutory provision. It was with very great reluctance that the words in this paragraph were inserted in the amended clause: but the Government hoped that the effect would be to obviate the liability to renewed insolvency, and the probability of renewed appeal to the jurisdiction of the County Court Judge. There was great force in the contention of his noble Friend, especially with regard to the point to which he (Earl Cadogan) had himself before alluded, that the insolvent tenant would obtain a relief not granted to the solvent tenant. He had also some hope that, if the power of revising the rent were not given after the discharge of the bankrupt, the tenant who had been whitewashed might be better able to pay a given rent than he was at a time when he was overwhelmed by outside debts, far more than by the rent due to the landlord. Therefore, if the Judge, in fixing the rent to be paid, considered the general prospects of the tenant, he might think him unable to pay a rental which, after he was relieved from the burden of his debts, he would be well able to pay. Under all the circumstances, therefore, he had come to the conclusion, not unwillingly, that the Government were prepared to accept the Amendment, which he must say he considered a reasonable one.
§ LORD HERSCHELLsaid, that the announcement which the noble Earl (Earl Cadogan) had just made was rather a startling one. He had consented to strike out of this carefully thought provision, which they understood represented the views and intentions of the Government, that which was the very essence of the Bill. It was evident that the only conceivable inducement to a tenant to agree in an application that he should be made bankrupt was that he might obtain some relief in the way of reduced rent. The noble Marquess 1691 before now, in answer to some observations of his, contended that it was legitimate, when the tenant was in the position of a bankrupt not through his own fault, that his rent should be revised. But what, according to the noble Marquess, was justifiable in the case of a bankrupt was no longer to be permitted. He gathered from what had been said, that it was intended by the Government to take away the provision as to the fixing of rents from all the bankruptcy proposals.
§ EARL CADOGANOnly as regards the residue of the statutory term.
§ LORD HERSCHELLsaid, the proposal about to be omitted was a penalty put upon the landlord if he unreasonably refused to concur with the tenant in his application. The Government had declared that there were cases in which a thrifty and industrious tenant could not reasonably be expected to pay the rent fixed, and yet they were taking away the only protection which the tenant had if the landlord refused to make the bankruptcy application to the Court. It was true that there was a provision against the unreasonable refusal of the landlord in respect of a particular rent, but the matter should be settled once for all.
§ THE MARQUESS OF SALISBURYsaid, he entirely demurred to the statement that the essence of the Bill was the revision of rents in all cases. The essence of the Bill was to prevent harsh and unreasonable evictions, and it had been stated over and over again that, while the Government adhered, and meant to adhere, to that object, they were, when it had been attained, very much in the hands of the House as to the machinery to be used, and they were willing to listen to objections from all sides. They had already yielded something to noble Lords opposite, and to some of his noble Friends behind him. They wished to be dogmatic on the one point that harsh and unreasonable evictions should be prevented, but they did not wish to be dogmatic on anything else. With regard to the question raised by his noble Friend the Earl of Kilmorey, of revising the rent of the insolvent tenant, he confessed that if he were an Irish landlord he should prefer the clause as it stood, because it would be better for the landlords. But he had very little doubt, from all that had reached him, that the 1692 landlords in Ireland almost universally did not think so, and that they were very jealou3 of the charter given by the Act of 1881, which brought them a great deal of disadvantage and loss. That charter, they urged, should not be interfered with, and no revision of judicial rents should be undertaken. He considered that there was ground for thinking that the provisions of the Bill were the most convenient; but, at the same time, there was a good deal to be said on the other side. It must be remembered, moreover, that the security against the landlord continuing to enforce an impossible rent, if such rent there was, was very great, because the tenant, under the Bill, if the Amendment should be agreed to, would still be able to institute proceedings, the end of which would be that his rent would be compulsorily compounded, and that the rent, if excessive, would be reduced on each occasion. On each occasion there would be costs, which, of course, if the tenant had been the reasonable, and the landlord the unreasonable party, would inevitably be placed upon the landlord. It was, therefore, the landlord who had the greatest possible motive in considering whether the rent was reasonable or not. Was there any hope, if they gave this power to the County Court Judge, that it would be within his reach so to foresee what would occur in future years, that he would be able to fix another rent which would not be liable to the same mutability of human affairs by which it was alleged that former rents had been affected? They were told by the head of the Commission (Earl Cowper), and by the Commissioners, that there were certain causes which had made the state of things now so difficult that in many cases rents pressed harder than the Commissioners intended them to do. These causes had operated against the power of the tenant to pay his rent; but would they not operate in the future? He felt that in the case of those tenants who were just on the verge of subsistence there was something disparaging in the process of fixing a rent which was to last across all vicissitudes for a considerable number of years; and he could well understand the feelings of the Irish landlords that as the principle had been adopted, as against free contract, of estates managed under the supervision of the Court, it was better, 1693 on the whole, instead of trying to fix rent for a future term of years, to which they would not be able to adhere, to leave the matter under the control of the County Court Judge, and open to constant appeal to him, and with abundant power in his hands, to make either landlord or tenant pay the penalty if their conduct had been unreasonable, and if they had not been willing to submit to inevitable changes, which the seasons or the condition of affairs had produced. So long as harsh and unreasonable evictions were prevented, he would not insist upon any particular machinery.
THE EARL OF KIMBERLEYsaid, he felt bound to express the feeling of surprise he experienced at the action of the Government. This constant power of appeal to the County Court Judge would produce a state of confusion all over Ireland. But it should be borne in mind that it was not the Opposition who took the first step in re-opening this matter. The Commission presided over by Earl Cowper, and which was appointed by the Government, had placed it on record that there were at the present moment a large number of judicial rents fixed too high which the tenants were unable to pay. From that fact they could not escape. It was a position of extreme difficulty, he admitted; but to dangle before the Irish tenants the remedy which the clause contained, and then to withdraw that remedy in deference to the wishes of the landlords, and provide for a constant power of appeal to the County Court Judge, which the noble Marquess had himself stated was a worse provision than the one now abandoned—this action of the Government was vacillating and dangerous, and there could be nothing more likely to increase the confusion. The noble Marquess had endeavoured to show that the tenant would be in no worse position under the clause as it was now proposed that it should stand; but he thought, even on the noble Marquess's own showing, the position would be very much worse.
§ THE EARL OF NORTHBROOKsaid, that his noble Friend should remember that they on that side of the House were responsible for the Act of 1881. He did not agree with the noble Earl who had just spoken, who was putting every possible difficulty in the way of the Government. He thought the Lord Privy Seal had done rightly to agree 1694 to the omission of the words. He agreed that if they were to deal with judicial rents, they must not deal with them in such a way as to demoralize the whole tenantry of Ireland; but such demoralization would result rather from the clause as it stood than from the Amendment. The position taken up by the Government was perfectly logical and right, that they should provide a temporary remedy, and should not attempt through bankruptcy to revise the rents fixed under the Act of 1881. They were right, therefore, in accepting the Amendment. He complained of the conduct of his noble Friends in trying to put difficulties in the way of the Government.
§ LORD HERSCHELLthought the noble Earl who had just spoken was rather hard upon the Leaders of the Opposition in suggesting that they were factious, because they preferred the original form of the Bill, which the Leader of the House thought the best, to the form which the Amendment would give to it. His own objection to the provision altogether was that it would tend to demoralize tenants, but in a sense different from that in which the noble Earl had used the word—namely, by making bankruptcy the only channel of relief; and this was not altered by the Amendment.
§ LORD CASTLETOWNsaid, he could not imagine anything more dangerous than to tamper with judicial rents, and two of the most important witnesses examined by the Commission were strongly of opinion that these rents should not be interfered with.
THE EARL or BELMOREsaid, that many of their Lordships had supported the second reading of the Bill, on the ground that there had been harsh evictions, which were to be put an end to, but on the understanding that there was to be no further revision of judicial rents. If tenants were driven into bankruptcy it would not be solely on account of their rents, but largely through their other debts. In the majority of cases, relieved of other debts, they would be able to pay the moderate rents fixed by the Commissioners. There was strong ground for the feeling that if the words objected to remained in the clause, many tenants would go into bankruptcy simply in order to get their rents reduced. The temptation to do so would be one which 1695 they would not be able to resist. Before 1881, the normal number of estates in Ireland having Receivers over them did not exceed 500. There were now between 1,200 and 1,300 estates under the jurisdiction of the Court of Chancery, and the number was increasing every day. This fact showed what strong reason there was for not tampering any further with judicial rents. In cases in which they were unduly high, most landlords would willingly give temporary abatements. He rejoiced that the Lord Privy Seal had assented to the Amendment.
THE EARL OP DUNRAVENMy Lords, as the Government have agreed to take these words out, in deference to what they understand to be the universal opinion of Irish landlords, I wish to say that I, for one, do not entirely object to these words. If the Bankruptcy Clauses are to be of any real avail, it appears to me that as the Bill stands words to this effect must be formulated in those clauses. As the Bill was originally brought in, either a landlord or a tenant could petition; as it is now, it requires that the landlord and the tenant must join together to petition. The result of this would be, that where a tenant is really bankrupt, he will be made a bankrupt; but that if he is not bankrupt—and it would be to the immense advantage of the landlord that he should be bankrupt—the tenant will object, and no penalty will be placed on the tenant. I do not know whether it is the object of the Government to make the Bankruptcy Clauses really work and act; but of one thing I am perfectly certain, that if no such power as this is contained in them the Bankruptcy Clauses will be absolutely a dead letter, and that will be a great misfortune. I was convinced that the Bankruptcy Clauses, as originally introduced, would be of great advantage to the landlords of Ireland. I confess also that I think it is unfortunate that these words, having been put in the Bill, should be taken out of it, because it will inevitably appear that the position of the tenant is this—that he is to go on in his holding subject to a rent such as a thrifty, industrious, and well-meaning tenant cannot possibly pay. That is an unfortunate construction to be put on the wording of an Act of Parliament. As the Bill stood, it was not necessary for the landlord and. the tenant 1696 to join together. But I do not mean that I entirely agree with the words as they now stand. What I think ought to have been done was to give the County Court Judge power, wherever he thought it necessary, to refer a case to the Sub-Commissioners, and leave it to them to settle the statutory rent. I think that if words to that effect were put into the Bill it would be a very great advantage. The alternative proposal is a very painful one. What the tenants have to do, if they are required to pay a rent which they really and honestly cannot pay, is to be continually coming up as bankrupts, and getting themselves cleared, and being started again at rents they cannot pay. I think the County Court Judges ought to have been given power to refer a case to the Land Commissioners when, in their opinion, the insolvency of the tenant was owing to a rent which had become excessive.
§ Amendment agreed to.
§ On the Motion of The Earl of ERNE, the following Amendment made:—In Sub-section (2.) line 26, for ("may"), substitute ("shall on the application of the landlord").
§ Clause, as amended, agreed to.
THE EARL OF KILMOREYsaid, he proposed after Clause 21 to insert a new clause providing that a tenant should be compelled, on applying for a petition in bankruptcy, to file an affidavit stating the nature, amount, &c, of his debts and his assets. His object was to assimilate the procedure with the ordinary procedure in bankruptcy.
§
Amendment moved, to add after Clause 21—
22a. A tenant presenting a petition for adjudication against himself shall, with his petition, file an affidavit in the prescribed form, and shall furnish a copy thereof to the landlord or his agent, setting forth the names, addresses, and occupations of his creditors, the amounts respectively due to them, and the particulars thereof, and specifying whether they are secured or unsecured creditors, and, if secured, the nature and value of the security. He shall also in his said affidavit set forth particulars of his assets of every kind, whether consisting of money, debts due to him, farming stock and utensils, or other chattels or other property of any description, with the value of the same. He shall also state where all such chattels are. He shall specify in his said affidavit the estimated value of his interest in his holding or holdings, and if any part of his assets consist of money, or of securities for money in the
1697
hands of any trustee or other person for any purpose, he shall in his said affidavit disclose full particulars of the same, including the name of such trustee or other person, and the date when such money or securities for money was or were so placed in the hands of such trustee or other person. And if at any time it shall be proved to the satisfaction of the Court that there is any wilful or fraudulent mis-statement or concealment in or omission from such schedule, the Court may order the petitioner to be imprisoned for any term not exceeding six calendar months, with or without hard labour, as the Court shall think right."—(The Earl of Kilmorey.)
§ EARL CADOGANsaid, he was informed that the Rules of Court would apply to these proceedings, and it would be much better to leave the matter there than to burden the Bill with details of that kind.
§ Amendment (by leave of the Committee) withdrawn.
§ THE EARL OF BELMORE moved a new clause providing that the adjudication of any person under the Act should operate ipso factoas a release and discharge of all property of the bankrupt from every mortgage, charge, security, and lien, whether legal or equitable, to which at the date of adjudication any person may be entitled on the real or personal property of the bankrupt, every such person to rank as an unsecured creditor only, said, that it might seem a strong measure to level mortgages, but the object was to prevent fraud. This might happen—a dishonest tenant might wish to favour some of his creditors, and he would borrow on mortgage what would pay them in full, and afterwards go into bankruptcy, leaving the landlord and other creditors whom he disliked out in the cold. He would leave the Amendment in the hands of the House and of the Government.
§
Amendment moved,to add, after Clause 21—
21B. The adjudication of any person under this Act shall ipso facto operate as a release and discharge of all property of the bankrupt from every mortgage, charge, security, and lien, whether legal or equitable, to which at the date of adjudication any person may be entitled on the real or personal property of the bankrupt, or any part thereof, and every such person shall rank as an unsecured creditor only, for his debt or the amount due to him pass with the other creditors of the bankrupt, whether he shall prove for his debt or the amount due to him or not."—(The Earl of Belmore.)
§ LORD FITZGERALDsaid, he should oppose the clause. He thought that the noble Earl could hardly have conceived the consequences of it.
§ THE LORD CHANCELLOR (Lord HALSBURY)said, the effect of this new clause might be that any two persons in the relation of landlord and tenant might come to an agreement between themselves to do away with the property. Its operation would be signally unjust, although he did not deny that there was an evil against which the noble Earl was attempting to provide a somewhat harsh remedy. The clause could not be accepted by the Government.
THE EARL OF BELMOREsaid, that he did not quite follow his noble and learned Friend (Lord Fitzgerald). He could not always agree with him as to what was equitable and inequitable, as, for instance, the other night, as regarded a point on the leaseholder question. He would not press the Amendment; but he hoped that the Lord Privy Seal would consider the matter before Report, and bring up something himself.
§ Amendment (by leave of the Committee) withdrawn.
§ Clause 22 (Power in certain cases to continue tenant in his holding, notwithstanding bankruptcy).
THE EARL OF MILLTOWN, in moving an Amendment providing that the Court might permit a debtor to remain in occupation of his holding on payment of "his rent," and not "a reasonable rent to be fixed by the Court," as stated in the clause, said, that the judicial rent was supposed to be a fair rent; but by introducing the word "reasonable" in the clause the Government seemed to indicate to the tenantry of Ireland that the rents they were paying were unreasonable and too high. He should have thought that when the Lord Privy Seal accepted the Amendment of his noble Friend behind him he would accept the present Amendment.
§ Amendment moved, in page 14, line 3, leave out ("reasonable"), and insert ("his ").—(The Earl of Milltown.)
§ EARL CADOGANsaid, the Government could not accept the Amendment, as the Government did not think it 1699 would be possible to insist on the payment of the existing judicial rents in every case of the kind.
§ On Question, "That the words proposed to be left out stand part of the Clause?"
§ Their Lordships divided:—Contents 92; Not-Contents 38: Majority 54.
§ On the Motion of The Earl of ERNE, the following Amendment made:—In page 14, lines 25 and 26, leave out(" and any land improvement charge or drainage charge ").
§
On the Motion of The Duke of ABERCORN, the following Amendment made:—
In page 14, line 40, omit the following words:—("When the court grants a certificate of conformity to a bankrupt who has been permitted to remain in occupation of his holding, the court may, if the holding is subject to a statutory term, fix the rent to be paid for the residue of such statutory time then unexpired, at such amount as, in the opinion of the court, a thrifty and industrious tenant might reasonably be expected continuously to pay.")
§
Amendment moved,
At end of Clause 22, to add after (''holding")—("If any creditor or any bankrupt under this Act, or other person shall conceal, or attempt to conceal, or aid in concealing or attempting to conceal, any part of the bankrupt's property, or being in possession of any property or money or trust, or as agent for the bankrupt, shall refuse to deliver up the same, or to give full information concerning the same when required, every person so offending shall, in addition to all other penalties, forfeit and pay for every such offence the treble value of such property so concealed or attempted to be concealed, or not delivered up, or concerning which full information shall not be given, and the court, on the application of the assignees, in a summary manner may make an order for the payment of the same by the person so offending, which order may be enforced in the same way as a decree for the payment of money is now by law enforceable, or the assignees may sue for and recover such penalty in the High Court of Justice in Ireland, and half the money so recovered shall be paid to or among the person or persons, if more than one, equally, whose evidence, the court shall be of opinion, materially assisted in the discovery or proof of the offence, and the other half shall be paid to the creditors of the bankrupt, other than any offender under this section, in proportion to their respective debts, and irrespective of any compensation they may have received.")—(The Lord Castletown.)
§ EARL CADOGANsaid, he could not accept the proposed addition to the clause. The question was already dealt with in the Act of 1872.
§ Amendment (by leave of the Committee) withdrawn.
VISCOUNT DEVESCI, in moving, as an Amendment, to add at the end of the clause—
If in any case where a composition of a tenant's debts has received the sanction of the court any of his creditors should at any time hereafter, either directly or indirectly, take or receive any money, effects, property, or value whatever in respect of the unpaid portion of his claim or debt, save under and with the sanction of the court, such creditor shall be liable to a line of £200, and one-half of such fine shall be paid to the person or persons whose evidence, in the opinion of the court, may have led to the disclosure and proof of the offence,said, his object was to protect the poor and ignorant tenant from a class of men who were his "worst enemies, the gombeen man and the village usurer. He was confirmed in the opinion that such protection was necessary by some of the most experienced men in Ireland, the managers of local banks.
§
Amendment moved,
In page 15, line 14, at end of Clause 22 add—(" If in any case where a composition of a tenant's debts has received the sanction of the court any of his creditors should at any time hereafter, either directly or indirectly, take or receive any money, effects, property, or value whatever in respect of the unpaid portion of his claim or debt, save under and with the sanction of the court, such creditor shall be] liable to a fine of two hundred pounds, and one-half of such fine shall be paid to the person or persons whoso evidence, in the opinion of the court, may have led to the disclosure and proof of the offence.")—(The Viscount De Vesci)
§ LORD ASHBOURNEsaid, that a creditor who would do what the provision of the noble Viscount was intended to guard against would be guilty of a gross fraud under the existing Bankruptcy Law; and, in his opinion, no new legislation was wanted on the subject. But if the noble Viscount was advised that something was required to be done he should be glad to consult with him.
VISCOUNT DE VESCIsaid, that the noble and learned Lord must know that in the small villages the poor man was entirely in the hands of that class of creditors to which he had referred.
§ LORD FITZGERALDsaid, he was glad that attention had been called to the subject. When a poor man wanted fresh credit, the gombeen man would say to him—" I will give it to you, provided you pay the balance of the former debt? "
§ EARL CADOGANsaid, the matter would be considered.
§ Amendment (by leave of the Committee) withdrawn.
§ Clause, as amended, agreed to.
§ Clause 23 (Power to appoint additional staff of judges for bankruptcy) agreed to.
§ Clause 24 (Sittings) agreed to.
§ Clause 25 (Summary punishment for perjury and fraud).
§ LORD HERSCHELLsaid, he would move to omit the clause, on the ground that if a man swore falsely to his knowledge, that was wilful and corrupt perjury. That he understood; but he did not understand what was meant by "swearing or affirming what shall be false." If the swearing was not false to the man's knowledge, it was not wilful and corrupt perjury. By the clause no opportunity was afforded to the witness to call evidence or employ counsel; and it enabled the Judge, who might be irritated at the way in which the testimony was being given, to decide that it was false, and to summarily punish. To enable a Judge in Bankruptcy to commit to prison one who might be only a witness, without having any opportunity of meeting the charge, was a very strong and oppressive proceeding.
§ Amendment moved, To leave out Clause 25.—(The Lord Herschell.)
§ EARL CADOGANsaid, that the Government would consider the wording of the clause on Report, to meet the view of the noble and learned Lord; but they could not consent to leave it out altogether.
§ LORD HERSCHELLsaid, that as his object had been gained he would withdraw the Amendment.
§ Amendment (by leave of the Committee) withdrawn.
§ Clause agreed to.
§ Clause 26 (Officers) agreed to.
§ Clause 27 (Appeals) agreed to.
§ THE EARL OF LEITRIM moved to insert after Clause 27 a new clause, providing that the Act should apply to all leases and grants of land in perpetuity made to any person previous to the passing thereof, and under which, or under the provisions of any Act of Parliament by virtue of which the same was 1702 made, the grantor or the grantee is entitled from time to time to, require the variation and revision of the variable rent payable under such leases or grants.
§ Amendment moved, after Clause 27, page 10, insert the following Clause:—
§ (Perpetuity leases. Variable rents.)
§ "This Act shall apply to all leases and grants of land in perpetuity made to any person previous to the passing hereof, and under which, or under the provisions of any Act of Parliament by virtue of which the same was made, the grantor or the grantee is entitled from time to time, and at the expiration of certain periods of time, to require the variation and revision of the variable rent payable under such leases or grants; and in every such case the following provisions shall be in force and have effect with respect to the variation and revision of such variable rent, and shall supersede and be in substitution for all and every the provisions in that behalf contained in such leases or grants and in any Act of Parliament with reference thereto:
- "(a.) The grantor or grantee shall be entitled six months before the expiration of any prescribed period to require a revision of such variable rent, and to apply to the court to fix the same, and in such case the party desiring the revision shall serve a revision notice upon the other party;
- "(b.) In every case where, before the passing of this Act, any revision of such variable rent has taken place in pursuance of the leases or grants, or of any Act of Parliament with reference thereto, the grantor or grantee may at any time within the pre-scribed period serve a revision notice upon the grantee or grantor, as the case may be, and in such case the prescribed period then current shall be deemed to have expired at the gale day next after the end of six months from the service of such notice;
- "(c.) Whenever the grantor or grantee has served a revision notice, and the parties agree within three months after service of such notice as to what shall be the amount of variable rent to be payable during the prescribed period next following, they may fix the amount of the variable rent to be payable during such prescribed period;
- "(d.) Whenever the grantor or grantee has served a revision notice, and the parties do not within throe months after the service of such notice agree as to what shall be the amount of the variable rent to be payable until the variation and revision of such variable rent next following, then and in every such case the amount of the variable rent to be payable until the variation and revision of such variable rent shall be fixed by the court in accordance with the provisions contained in this Act;
- "(e.) Before fixing the variable rent of any such lands the court shall take evidence as to the then letting value of such lands, and such value is herein-after referred to as 'the present letting value,' and shall take evidence as to the letting value of such
1703 lands at or about the time when the grant was made, and such letting value is hereinafter referred to as 'the former letting value,' and shall preserve the same proportion between the present letting value and the variable rent to be paid by the grantee until the variation and revision of such variable rent next following, as existed between the former letting value and the variable rent payable by the grantee immediately after the making of the grant: Provided always, that the grantor shall not be awarded any increase of variable rent by reason of any increase in the value of such land, which is due to any buildings or improvements, except in so far as the grantor has contributed to the same. The variable rent fixed by the court under this Act shall be the variable rent payable under the leases or grants until the same shall be again varied and revised;" - (f.) In this section the words following shall have the meanings respectively attached to them, namely, 'person' includes corporation, whether aggregate or sole; 'variable rent' means a rent subject to variation and revision; 'prescribed period' means the period at the expiration of which a variation and revision of the variable rent, payable in respect of any lands leased or granted in perpetuity, may be required, in pursuance of any lease or grant of the same, or of any Act of Parliament, or this Act; 'revision notice 'means a notice in writing signed by the person giving such notice, and requiring a variation and revision of any variable rent; 'grantor' means the person to whom such rent is payable; 'grantee' means the person by whom such rent is payable."—(The Earl of Leitrim.)
THE EARL or ROSSEsaid, he must take exception to the proposal, which had for its object the relief of the noble Earl (the Earl of Leitrim) from his perpetual leases from Trinity College, Dublin.
§ LORD BRAMWELLsaid, the new clause differed from those in the Bill. It neither sought to have a fair rent fixed, nor a power to surrender the lease. To either of these the lessons would gladly agree, as the lessees were making a large profit rent. The noble Earl, one of the lessees, was receiving a profit rent of £2,000. What he sought was this—that when the rents received by the lessees of the College had been reduced, the rent payable by them to the College should be reduced in proportion. That was to say, if 20 per cent had been taken off the rents payable to the lessees, 20 per cent should be taken off the rents payable by them to the College. Why? Either they had been receiving more than a fair rent, or they had not. If they had been receiving more than they 1704 ought, how did that give them a claim to reduction of the rent payable to the College? If they had not been receiving more than they ought to have received, and injustice had been done thorn in the reduction of the rents payable to them, by what right did they want to shift part of the injustice on to the College? It might be hard upon the lessees in a sense; but what had Trinity College to do with that? Why should the lessors be losers? The rents paid by the lessees had been spoken of as statutory. The only sense in which they were so was that an Act was passed to legalize that which had been agreed upon. A bargain was struck, and it was made valid by Act of Parliament.
§ THE EARL OF LEITRIMsaid, that these statements were contrary to the fact.
§ LORD BRAMWELLsaid, that the Act of Parliament and the leases spoke for themselves; and now their Lordships were asked to disturb the bargain that was made. The proposal was unfair and unreasonable, and it had nothing to do with any part of the Bill.
§ LORD FITZGERALDsaid, he was sorry the question was brought forward at this hour, when those who usually supported the noble Earl (the Earl of Leitrim) were absent. No doubt, Trinity College would be delighted if their immediate tenants would surrender their leases, for surrender would enable them largely to increase their income. Perhaps it was then-object to screw them down until they did surrender. It was said that the noble Earl who moved this clause paid the College £3,000 a-year, and received £5,000. It might be that the noble Earl had tenants who promised him, in the whole, £5,000; but it was very doubtful whether he received anything like that sum. There was no doubt the lessees were parties to the Act of 1881; but the question was whether it was a voluntary contract. The lessers said—"If you do not agree to our terms, we will not renew your leases." And the conditions imposed were very hard. He thought they could not do justice to the subject, which involved a great grievance, at that hour of the evening (20 minutes to 9), and he suggested that the Amendments should be withdrawn and brought up on Report.
§ EARL CADOGANsaid, the Government could not accept these Amendments for the reasons already stated. The proposal was entirely outside the scope and object of the Bill.
§ THE EARL OF LEITRIMsaid, he would accept the advice of his noble and learned Friend (Lord Fitzgerald), and postpone his Amendment until the Report.
§ Amendment (by leave of the Committee) withdrawn.
§ Clause 28 (Court valuers in county courts) agreed to.
§ Clause 29 (Rules, orders, &c. for bankruptcy matters) agreed to.
§
On the Motion of The Lord FITZGERALD, the following Amendment made:—
In page 14, after Clause 29, insert as a new-Clause:—(" In all actions of ejectment for nonpayment of rent in the Civil Bill Court the fees, costs, charges, and emoluments henceforth recoverable shall be according to the scale of fees, costs, charges, and emoluments for the time being in force in ordinary civil bills, and in referring to such scale the annual rent of the holding for which such ejectment shall have been brought shall be deemed the amount sued for and decreed for respectively.")
§ Clauses 30 to 32, inclusive, agreed to.
§ The Report of the Amendments to be received on Friday the 1st of July next; and Bill to be printed as amended. (No. 122.)
§ House adjourned at a quarter before Nine o'clock, till To-morrow, a quarter past Ten o'clock.