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Duplicands Of Feu-Duties (Scotland) Bill

Volume 41: debated on Tuesday 13 July 1920

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Order of the Day for the House to be put into Committee, read.

Moved, That the House do now resolve itself into Committee.—( Viscount Haldane).

On Question, Motion agreed to.

House in Committee accordingly.

[THE EARL OF DONOUGHMORE in the Chair.]

Clauses 1 and 2 agreed to.

Clause 3:

Interpretation of "duplication of feu-duty."

3. Where under any feu provision is made for payment of a duplication of the feu-duty on the entry of an heir or singular successor, or on any periodical occasion, such payment shall be deemed to be the amount of one year's feu-duty only over and above the feu-duty for the year.

moved to leave out "is" and insert "has been." The noble and learned Viscount said: I may take the opportunity of explaining that my Amendments are proposed in accordance with the undertaking I gave to the noble and learned Lord on the Woolsack, and I think they do what is required. The first of the Amendments, to introduce the words "has been" instead of "is," is intended to show what the nature of the Bill is. It applies to all instruments, past and future.

Amendment proved—

Page 1, line 9, leave out ("is") and insert ("has been")—(Viscount Haldane.)

On Question, Amendment agreed to.

moved, after "a," to insert "duplicand or." The noble Duke said: I do not intend to press the Amendments put down in my name if the noble and learned Viscount assures me they are unnecessary. There is a certain amount of apprehension about this Bill because it was only owing to a recent decision that the cases affected arose. There is a great desire that there should be no loophole in the Bill which would either lead to fresh litigation or, perhaps, go beyond what the authors of the Bill intend. The noble and learned Viscount has been kind enough to consider my Amendments, but I would ask His Majesty's Government to give some assurance that this Bill has their approval, in other words, that they consider it really is all right, and that it will settle this question, and not lead to any further difficulties in the future.

Amendment moved—

Page 1, line 10, after ("a") insert ("duplicand or").—(The Duke of Buccleuch.)

Without dealing with the merits of the particular Amendment moved by the noble Duke I gladly avail myself of the opportunity to reply to the invitation which he extended to me as representing the Government. This Bill has been very carefully examined by the Government. It is proper for any English lawyer to express himself in terms of extreme caution when he deals with any matter which particularly belongs to the practice of Scottish law. But my learned friend the Solicitor-General for Scotland, I am informed, has given the closest attention to this matter, and he, I think, enables me to offer to the noble Duke a reassurance that, in his homely phrase, it is "all right." I may add to that, for what it is worth, the expression of my own opinion that, having given such attention as an English lawyer may be supposed capable of giving to these proposals, I equally am persuaded that they are "all right."

The noble Duke had the courtesy to communicate with me on the subject of his Amendment, and, on very high advice independent of the Government, I ant told that "duplicand" means nothing else but "duplication."

Amendment, by leave, withdrawn.

The next Amendment changes nothing. It merely makes the clause clear.

Amendment moved—

Page 1, line 12, after ("shall") insert ("unless in the feu right it is otherwise declared to the contrary").—(Viscount Haldane.)

On Question, Amendment agreed to.

Clause 3, as amended, agreed to.

Clause 4:

Duplicands to include eu-duty of the year.

4. From and after the commencement of this Act, where under any feu it is provided that on the entry of an heir or singular successor, or on any periodical occasion, payment shall be made of a duplicand or double of the feu-duty, or that the feu-duty shall be doubled, such payment, whether or not it is provided to be made at the same term or terms as the feu-duty, shall be deemed to be inclusive of the feu-duty for the year, and the amount of the casualty payable to the superior shall, for the purposes of the Feudal Casualties (Scotland) Act, 1914, and for all other purposes, be deemed to be the amount of one year's feu-duty only, unless such payment is expressed to be over and above such feu-duty or is otherwise unequivocally declared not to include the feu-duty of the year.

moved, after "feu," to insert "charter." The noble Lord said: Feu is the subject which is conveyed; feu-charter is the document which conveys the subject to the feuar. It shows all the rights of the feuar, and there is also a plan showing the ground feued. It seems to me that "charter"—or perhaps a better word would be "disposition"—ought to be inserted; I see "disposition" is always marked in my feu-charter.

Amendment moved—

Page 1,line 15, after ("feu") insert ("charter").—(Lord Saltoun.)

It is very satisfactory to find that those of your Lordships who come from Scotland are taking so keen an interest in the technical part of this Bill. I have the greatest sympathy with the noble Lord's desire to make anything clear that is not clear, but I have acted on the very highest legal advice, and "feu," although, of course, it means the subject of the feu, is also used for the feu-right, however constituted, and the word is better than "charter" or even "disposition," for this reason. The noble Lord's suggestion is that we should say "feu-charter," but there is another way of constituting a feu, by feu-contract. The feu-contract might be shut out, which would be disastrous. Indeed, in the Act of 1914, which is the ruling Act, the terms are "feu-charter or fen-contract or other deed." Nobody knows what "other deed" might not cover, and I am advised by the very highest authority that "feu" is an expression which covers all those things. It is better to take the general name.

After what the noble and learned Viscount has said, I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

moved, after "any," where that word secondly occurs, to insert "specified." The noble Lord said: The reason I move this Amendment is that there are possibly other occasions when a duplicand may be necessary.

Amendment moved.—

Page 1, line 16, after ("any ") insert "specified").—(Lord Saltoun.)

On Question, Amendment agreed to.

Clause 4, as amended, agreed to.

Clause 5 agreed to.

Clause 6:

Commencement of Act.

6. This Act shall be deemed to have commenced and come into operation on the fourth day of April nineteen hundred and nineteen, and all money paid since the fourth day of April nineteen hundred and nineteen in name of duplicand, duplication, or double which would not have been exigible in respect of this Act shall be recoverable at law.

Amendment moved—

Page 2, leave out Clause 6.—(Viscount Haldane.)

On Question, Amendment agreed to.