Imatges de pÓgina

THE MARQUESS OF CLANRICARDE | his own part he rejected all responsibility remarked, that by the terms of the clause, as to the measure. By certain of the if a tenant wilfully put his house out of clauses a most serious invasion was made repair-if he knocked down half a chimney, on the important law of entail, which was or a hole in the wall, or took the door off entirely interwoven with our aristocratical its hinges for a dancing party-he could and territorial institutions; and this meaprevent the landlord from recovering his sure, if passed, would no doubt be quoted rent. He never heard before of such a hereafter as a precedent for altering the clause being inserted in a Bill. laws of entail in this country.

THE EARL OF CLANCARTY thought the clause, if agreed to, might have a tendency to induce a tenant to commit wilful damage to the property of the landlord.

THE LORD CHANCELLOR said, it might be true that the noble and learned Lord referred to had expressed strong apprehensions of this Bill; but if the noble Earl had heard the grounds of objection of the noble and learned Lord, he would not have said that the Bill was an invasion of the law of entail. How it could be deemed an infringement of the law of entail passed his comprehension. By that law a tenant in tail in England could now grant leases for twenty-one years, and this Bill said he might grant them for thirtyone years. The tying up of land would become an intolerable nuisance if it were not mitigated by the clauses introduced into settlements. He did not yield to the noble Earl in his desire to support the landed interest, the great importance of which he readily admitted; but which he believed could not and would not be susex-tained unless deeds of entail were coupled with clauses and enactments to make the maintenance of these entails consistent with the growing wants of mankind.

THE LORD CHANCELLOR said, if the noble Earl had directed his attention to the next clause in the Bill he would have found, that so far from giving an encouragement to a tenant to commit wilful damage, it rendered him liable, if he did so, to summary eviction upon the order of two magistrates. These clauses of the Bill gave corresponding advantages and disadvantages. The landlord had more summary powers given to him than he possessed at present; and, on the other hand, before he could recover his rent, he must show that he had performed his duty in keeping the property in proper repair. THE EARL OF MALMESBURY thought the clause, if agreed to, would lead to tensive litigation.

THE DUKE OF ARGYLL said, that the only object of the clause, and of the clauses immediately following, was to hold out an inducement to the landlord to keep his tenant's cottage in repair, by giving him, in case of need, a summary power of repossession.

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POWERS OF LEASING (IRELAND) BILL. House in Committee (according to order).

THE EARL OF MALMESBURY regretted that no noble Lord, learned in the law, had considered this Bill in the Select Committee; and he had thought it so absurd for persons unacquainted with the law to deal with such a measure, that he had ceased to attend the Committee when the Bill was discussed. Their Lordships, however, had had the advantage of hearing the opinion of a noble and learned Lord (Lord St. Leonards), who stated that he objected to nine-tenths of the Bill. For

After a few words from the Marquess of CLANRICARDE,

THE EARL OF DONOUGHMORE said, although it had been stated that the noble and learned Lord (Lord St. Leonards) and some other law Lords considered the measure to be founded on unjust and illegal principles, yet there were Judges in Ireland of equal ability who highly approved of it. He should support the


Amendments made: The Report thereof to be received on Monday next.

House adjourned till To-morrow.

Thursday, May 18, 1854.

MINUTES.] PUBLIC BILLS. -1° Reformatory
Schools (Scotland).

2o Real Estate Charges; Merchant Shipping;
Merchant Shipping Acts Repeal; Wreck and

3° Manning the Navy; Navy Pay, &c.


wished to inquire of the hon. Secretary | medals to the troops who had been engaged in the Burmese war, and Mr. Wyon, the engraver, was now engaged in cutting the dye for them, but he could not say how soon they would be issued.

of the Treasury whether the attention of the Government had been directed to the difficulties which had occurred in the collection of land tax in the hundred of Gartree in the county of Leicester? whether they were aware of the interference of the Board of Inland Revenue, tending to the increase of those difficulties? and whe ther there were any means in contemplation whereby the uncertainty of the law on the subject of the land tax assessment might be removed?

MR. J. WILSON, in reply, said, that the state of the law upon the subject to which the hon. Baronet's question related, though for some time considered doubtful, had, by a recent decision of the courts of law, been made clear. The attention of the Government had not been drawn in particular to the case referred to; and, so far as he knew, the Board of Inland Revenue had not interfered in a manner to create difficulties, or to increase difficulties which might have previously existed; but it appeared that the Land Tax Commissioners for the hundred of Gartree had taken upon themselves to alter the assessment to the land tax from the legal assessment, as settled in the year 1798. The matter stood thus. The parties liable objected to pay upon the altered assessment; the Commissioners refused to receive payment upon any other, and the Board of Inland Revenue, upon being appealed to, had not thought it right to insist upon an assessment which they considered illegal. There was no necessity for any alteration of the law on the subject, as there was no doubt of the assessment of 1798 being the only legal assessment, and it would be illegal to enforce any other. If, however, the Commissioners thought differently, it was their duty to attempt to enforce payment according to their own interpretation of the law, and if they did, the Board of Inland Revenue would have to apply for a mandamus, calling upon them to raise the tax according to the legal assessment.

THE BURMESE WAR-QUESTION. MR. ESMONDE said, he begged to inquire whether it was intended to issue a medal to those troops engaged in the late Burmese war; and if so, when might its issue be expected?

MR. OTWAY: Then are we to understand that the right hon. Gentleman considers the Burmese war at an end?

SIR CHARLES WOOD: I am happy, for the satisfaction of the hon. Member and of the House, to be able to say that I this morning received a communication from the Governor General of India, in which he states that nothing can exceed the pacific character of the reports received by the Government of India from Burmah, and that the King of Ava is so entirely satisfied that peace will be preserved, that not only has he withdrawn all his own troops from the frontier, but has entered into an arrangement to supply our troops with all the wheat grown in his own country.


MR. APSLEY PELLATT said, he wished to put a question to the right hon. Baronet the First Lord of the Admiralty, whether any, and, if so, what instructions had been given to Her Majesty's vessels on the East India or other stations, for the protection of British whalers on the coast of Japan and Timor, against Russian war vessels now believed to be in those seas. There was great difficulty in effecting insurances except at very high premiums, in consequence of that belief, and he would suggest that some steps should be taken to relieve the owners from the additional expense thus incurred.

SIR JAMES GRAHAM said, it was not quite regular for the Government to effect the insurance of merchant vessels, but he had reason to believe that a very moderate premium would be taken. Owing to the perfect and good understanding between the French and English Governments, the naval forces of the two Powers on every foreign station, and on the China station in particular, were combined for the protection of the trade of both countries. He might further add that the Russian force in those seas was, as compared with that of either France or England, extremely small, and that from the accounts which had been received it appeared that the Russian ships were runabout from one neutral port to another now at Manilla and now at

SIR CHARLES WOOD replied that
Her Majesty's sanction had been obtain-ning
ed some time ago for the distribution of
Sir Henry Halford


some other place-seeking shelter, orders | Britain, if taken up by the Government, having been given to keep a close watch upon them, which would undoubtedly be carried out.



MR. FRENCH: Sir, I have given notice of a question which I wish to put to the First Lord of the Admiralty, whether, at a time when the British contingent force in Turkey is unable to take the field from the non-arrival of its cavalry, it is the fact that a screw-steamer, capable from its dimensions and accommodation of conveying an entire cavalry regiment, including horses, each voyage, and in a fortnight, to the seat of war, has been twice placed by its owners at the disposal of Her Majesty's Government; and, if so, whether his sense of public duty will admit of the right hon. Gentleman's stating to the House his reasons for declining to avail himself of the services of the Great Britain, when offered by Messrs. Gibbs and Bright?

would perfect the voyage from this country to Constantinople in a fortnight. My answer to this is, that no steamer has ever yet performed the voyage in that time, the shortest period in which it can probably be performed being from eighteen to twenty days. Then as to the other assumption, that the Great Britain has been twice offered to the Government, that also is incorrect, for she has been offered but once. But then comes the point, why has the offer been refused? The reason is, that upon the whole, the terms demanded appeared to the Government higher than they had paid for other vessels of a similar character, and without entering into minute particulars, which I presume the House would not desire-I may say that it was not thought expedient on the part of the Government to hire the Great Britain on those terms.

REAL ESTATE CHARGES BILL. Order for Second Reading read. MR. LOCKE KING, in moving the second reading of this Bill, said, he regretted that the whole of the law, more especially the common law, relating to real property was so involved in technicalities and difficulties that but comparatively few men could understand it. Its subtleties, indeed, were so great and so cunningly

SIR JAMES GRAHAM: I have endeavoured, Sir, to show that every information I can give consistent with what is due to the interests of the public service, I am at all times ready to give; but, I must say, I think I am entitled on this occasion to appeal to the House-and to protest against the form in which this question has been put upon the Votes, and through the me-devised that even professional men themdium of the Votes, circulated throughout the country. There are various assumptions in this question, all of which are unfounded. First, it is assumed that the British contingent now in Turkey is unable to take the field, from the non-arrival of its cavalry. On what ground that is put forward I am at a loss to conjecture, the fact being that that contingent is in all respects able to take the field and ready to execute any service the Government may direct. The second assumption is that a certain screw-steamer, capable of conveying an entire cavalry regiment in cluding horses each voyage, and in a fortnight, to the seat of war, has been twice placed by its owners at the disposal of Her Majesty's Government. Now, it is quite clear that that statement refers to the Great Britain, but so far from that vessel being capable of conveying an entire cavalry regiment, which consists of 300 horses, with the full number of men and officers, it cannot convey more than 150 horses. A third assumption, which is included in this last, is that the Great

selves very often could not comprehend them. The consequence had been for a great number of years that the public had suffered severely. Under the present state of the law, the heir or the devisee to a real estate which had been left to him mortgaged had a right to claim payment of that mortgage out of the personal estate of the deceased owner. From that system great hardships often arose; for it frequently happened that the whole of a deceased person's personal estate, which was all that stood between his widow and the younger members of his family and destitution, was entirely swept away in order to swell up still more the already disproportionate share of a single heir or devisee. What reason could there be for saying that the real estate was not to bear the onus which the owner himself had placed upon it by mortgaging it, but that this debt should be paid out of the whole personal property, leaving the family of the devisee in many instances destitute? Estates were frequently mortgaged in order to effect improvements in them, and

the heir who succeeded to an estate, with its improvements, ought not to be able to throw the expense of making them upon the personal estate of the deceased owner, whose family might thereby be reduced to penury. It was said that every one knew the law, and that these inconveniences might be obviated if persons would make a will, but, unfortunately, great ignorance prevailed upon this subject. He would state one of the cases of hardship to which the present state of the law had given rise. A gentleman had left by will the bulk of his personal estate to his wife; he also possessed some real estate, which was heavily mortgaged, and which descended to his nephew; and if the nephew had not been an honourable man and effected a compromise, the whole of the property would have gone to him, as the mortgage would have been paid off out of the personal estate. Another case was that of a man who had purchased a freehold publichouse for 1,500l., mortgaged it for 8001., and, after carrying on business for some time, died intestate, leaving a son and two other children. The son took out letters of administration, sold the personal property, and appropriated the proceeds to paying off the mortgage on the freehold estate which descended to him, while the other children were obliged to have recourse to the parish. All he proposed by this Bill was to prevent the heir or devisee of a real estate from claiming the payment of a mortgage on that estate out of the personal assets of the deceased owner. The second clause of the Bill was intended to enable the wishes of a testator, who desired that his real estate should be converted into personalty, to be carried into effect. He hoped the House would not object to the second reading of the Bill after the explanation he had given of its objects.

Motion made, and Question proposed, "That the Bill be now read a Second Time."

MR. MULLINGS said, he strongly objected to the Bill, as it now stood, for it might in certain cases go to disinherit the heir-at-law, which could surely never be the intention of the hon. Gentleman who had brought it in. According to the second clause, in certain contingent circumstances, so far from the heir-at-law taking that portion of the estate which was not converted, he himself, if not within the line of the next of kin, would lose the whole of his estate, instead of gaining it Mr. Locke King

to the exclusion of others. If it was necessary that the law should be altered, let it be done by the Solicitor General; but the present Bill attacked a great and settled principle of law, which ought not to be altered by a measure of this kind, under the pretence of dealing with an abstract proposition. He should move that the Bill be read a second time that day six months.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words “ upon this day six months."

SIR JOHN HANMER said, that the two clauses of the Bill related to two totally different subjects. He should vote against the whole Bill, because he did not think that it had been introduced in a plain and intelligible manner. The first part of it was well enough, but the second clause had no connection whatever with it.

THE SOLICITOR GENERAL said, it was with him a matter of regret that the hon. Gentleman (Mr. Locke King) had not addressed himself to a much larger evil, of which the evil complained of in the first part of the Bill was but a portion-namely, the different rules that now existed in our laws touching the administration of real and personal estate. What the hon. Member had complained of was nothing in the world more than the result of one of those rules, because it was a rule of law that all the debts of a testator should be first paid out of his personal estate. If a man made a charge upon his real estate, and gave the estate to one of his children, devising it by will in the ordinary way, in nineteen out of twenty cases of that kind it would be found that he had given the estate cum onere, intending that the devisee should take it subject to the payment of the encumbrance. But the law said to the parties entitled to the personalty, "You have given a bond for the payment of that debt, among other liabilities of the testator, when you proved the will or administered in the Prerogative Court, and therefore you are bound to pay it." The same rule applied to the case of an intestate. It was an anomaly remaining in our law, and which had descended to us from feudal times, that in the administration of assets we must exhaust the personal before we had recourse to the real estate. He hoped to live to see the time when that rule would be abolished, and when all kinds of property would be equally applicable to the payment of the debts of a testator. But in the meantime he would

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be sorry to oppose any impediment to any suggestion for the removal of the existing evil; and he was by no means inclined to discourage legislation for that purpose, although it was directed to a portion, and not to the whole evil. It was impossible, however, for human legislation to meet all the obstacles in the way of settling disputes; they could lay down general rules with great care and precision, but the difficulty was to make them applicable in practice to every variety of case. He would therefore accede to the second reading of the Bill, on the distinct understanding that the second clause would require considerable modification in Committee before he could consent to it.

MR. MALINS said, he did not collect from his hon. and learned Friend (the Solicitor General) that he intended to support the Bill when it got into Committee, and if it was not his intention to do so, it would be a waste of time to proceed further with it. The principles involved in the Bill were of the greatest importance.

He would state to the House that for centuries it had been a settled rule of equity that a man who mortgaged his estate did not thereby manifest his intention to increase the liabilities on his personal estate, but that he did so for a temporary purpose; and the law now was that any man who desired to continue a debt on his real estate could do so by his will, and could, moreover, in that way pass that real estate in aid in the payment of his debts. He thought, when the hon. Member (M. Locke King) proposed so extensive an alteration in the law, the House would agree with him (Mr. Malins) that this was a subject which deserved the greatest possible consideration, and ought not to be dealt with in a hasty and casual discussion in that House, unless it had received the most careful consideration of those who were well conversant with the matter. He thought the House would be acting upon a sounder principle if it adhered to the settled rules of the law, rather than act upon the suggestion of any private Member of that House, who, not connected with the profession of the law, was unable to see the practical working of the measure which he proposed. Entertaining this opinion, he should feel it his duty to vote against the second reading of the Bill.

THE ATTORNEY GENERAL said, he agreed with his hon. and learned Friend the Solicitor General in approving of the first clause and disapproving of the second

clause of this Bill. It was quite clear that the law, as it at present existed, was susceptible of improvement by the Bill before the House, and for that reason he should vote in favour of the second reading. At present the law undoubtedly operated very hardly upon individuals who could look only to the personalty of a deceased man for any provision for themselves. The members of a family frequently found that the personal estate was swallowed up by charges upon the real estate, while the real estate went to the heir-at-law.


MR. LOCKE KING briefly replied. Question put, "That the word now' stand part of the Question.' The House divided-Ayes 166; Noes 124; Majority 42.

List of the AYES.

Anderson, Sir J.
Atherton, W.
Barnes, T.
Bass, M. T.

Beamish, F. B.
Beckett, W.
Bell, J.
Bellew, T. A.
Berkeley, Adm.
Berkeley. C. L. G.

Bethell, Sir R.
Biggs, W.
Blackett, J. F. B.
Bland, L. HI.
Bouveric, hon. E. P.
Bowyer, G.
Boyle, hon. Col.
Brady, J.
Bright, J.
Brotherton, J.
Brown, W.
Cavendish, hon. C. C.
Cardwell, rt. hon. E.
Cavendish, hon. G.
Chambers, T.
Chaplin, W. J.
Cheetham, J.
Clifford, H. M.
Clay, Sir W.
Cockburn, Sir A. J. E.
Collier, R. P.
Craufurd, E. H. J.
Crossley, F.
Dalrymple, Visct.
Davie, Sir II. R. F.
Denison, E.
Devereux, J. T.
Drummond, H.
Duncan, G.

Dunlop, A. M.
Ellice, rt. hon. E.
Elliot, hon. J. E.
Esmonde, J.
Ewart, W.
Fagan, W.
Feilden, M. J.
Ferguson, J.

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