HL Deb 27 May 1892 vol 5 cc31-3



My Lords, I beg leave to ask the Lord Chancellor if it is true that a person, who previously to the passing of the Settled Land Act of 1882 had obtained an Order from the Court of Chancery extending his powers of leasing under will or settlement, is debarred from using the provisions of the Settled Land Act of 1882 until he obtains an Order from the Court of Chancery rescinding the former Order; and, if so, whether the Lord Chancellor will amend the Act of 1882 so that it should not be overridden by prior Orders of the Court; or whether he could provide for the rescinding of such Orders as are no longer required free of cost. I believe the question that I put is sufficiently clear, but I should like to show that it is not an idle question, and that I have a grievance. In the year 1871 I obtained an Order from Vice Chancellor Wickens on account of not having any leasing powers in respect to some property near Birkenhead; but afterwards, wishing to exercise the powers under Lord Cairns's Act, I was advised that Mr. Justice Pearson had decided in May 1884 that Lord Cairns's Act could not be exercised until the Order previously given by the Court of Chancery had been rescinded. But the same Judge in February of the same year did not consider that a private Act of Parliament interfered with the exercise of Lord Cairns's Act, and I thought it would not be wanting in respect to the Court of Chancery to suggest that, if a private Act of Parliament could be passed over, a prior Order of the Court of Chancery might equally be passed over. With regard to the second part of the question, whether the Act of 1882 can be amended so as not to be overridden by prior Orders of the Court, I have no further explanation to give; but, as to the last part of the question, I was also told that an application to a Judge might not be sufficient, but that he might require to have the case argued, which would involve engaging a Chancery lawyer at considerable expense; and that, I consider, would be an additional grievance.


My Lords, I am always obliged, in answering a question of this sort, to make a reservation, because it involves to some extent my giving an opinion on a question of law which has not been argued before me. I am bound to say that if the matter were res integra, and I had not been informed by the noble Lord what decisions had been given, I am not certain that I should not have taken the same view of the operation of the Act as the noble Lord has. I believe he has correctly stated the opinion that two learned Judges have expressed, and with deference to that judgment, until I can hear the question argued myself, I am not entitled to express any dissent from their view. I think the grievance that the noble Lord has indicated undoubtedly exists if those decisions are correct. Then with regard to the question whether or not any Order of the Court can dispense with the exigencies of an earlier Act, I am afraid I must answer in the negative. I do not think it can. The only remaining question is whether or not it is desirable to amend Lord Cairns's Act in that respect. I have taken some trouble to inquire, and I find that decisions under the Settled Land Act were extremely rare, indeed almost unknown for many years at the Courts; but, if I should come to the conclusion that there is really a practical existing grievance, and that an amendment of Lord Cairns's Act is necessary for the purpose of removing it, I certainly should consider the propriety, the necessity I may say, of introducing an Act of Parliament for the purpose of getting rid of what, according to the statement of the noble Lord, is a grievance that he has undoubtedly suffered. But, whether that is exactly so or not, I must ask the noble Lord to give me a little time in which to inquire whether it is worth while to introduce an Act of Parliament for that purpose.